Elliott v. City of New York

Appellate Division of the Supreme Court of New York

Elliott v. City of New York

267 A.D.2d 62, 699 N.Y.S.2d 395, 1999 N.Y. App. Div. LEXIS 12662

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 9, 1999

StatusPublished

Cited by3 cases

This text of 267 A.D.2d 62 (Elliott v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Elliott v. City of New York, 267 A.D.2d 62, 699 N.Y.S.2d 395, 1999 N.Y. App. Div. LEXIS 12662 (N.Y. Ct. App. 1999).

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Opinion

—Judgment, Supreme Court, Bronx County (Alan Saks, J., and a jury), entered on or about July 28, 1998, inter alia, finding defendants 100% liable for plaintiff’s injuries, and awarding plaintiff damages, and order, same court and Justice, entered March 29, 1999, which denied defendants’ motion to vacate the judgment, unanimously modified, on the facts, to direct a new trial on the issue of future lost earnings only, and otherwise affirmed, without costs, unless, plaintiff stipulates, within 30 days of the date of this order, to a reduced award for future lost earnings, before structuring, of $600,000 and to entry of an amended judgment in accordance therewith.

The trial court correctly held that defendants’ failure to provide bleacher seating with a side guardrail, as required by the Building Code (Administrative Code of City of NY § 27-531 [a] [8] [d]), rendered the bleachers unsafe as a matter of law (see, Martin v Herzog, 228 NY 164; Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559, 565, n 3; cf., Juarez v Wavecrest Mgt. Team, 88 NY2d 628, 645), and then correctly left it to the jury to decide whether such unsafe condition proximately caused plaintiffs injuries and, if so, whether any comparative negligence contributed thereto (see, Azzue v Galore Realty, 172 AD2d 467, lv denied 78 NY2d 856).

The jury’s findings that plaintiffs injuries were proximately caused by the absence of a guardrail, and that no negligence on plaintiffs part contributed to his injuries, turned largely on credibility, and are not against the weight of the evidence (see, Nicastro v Park, 113 AD2d 129, 134-135).

We reject defendant’s argument that because plaintiff never instituted a CPLR article 78 proceeding challenging his termination as a probationary police officer, the trial court should not have permitted the jury to determine that he was dismissed from the police force because of the injuries sustained in this accident, and to make awards for past and future lost earnings on the basis of that finding. Plaintiff is not [63]*63challenging his termination, and an issue of fact as to whether his termination was based on his performance or the injuries he sustained in this accident was properly submitted to the jury. We find, however, the award for future lost earnings excessive to the extent indicated. We have considered defendants’ remaining contentions and find them unpersuasive. Concur — Ellerin, P. J., Nardelli, Williams, Rubin and Andrias, JJ.

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—Judgment, Supreme Court, Bronx County (Alan Saks, J., and a jury), entered on or about July 28, 1998, inter alia, finding defendants 100% liable for plaintiff’s injuries, and awarding plaintiff damages, and order, same court and Justice, entered March 29, 1999, which denied defendants’ motion to vacate the judgment, unanimously modified, on the facts, to direct a new trial on the issue of future lost earnings only, and otherwise affirmed, without costs, unless, plaintiff stipulates, within 30 days of the date of this order, to a reduced award for future lost earnings, before structuring, of $600,000 and to entry of an amended judgment in accordance therewith.

The trial court correctly held that defendants’ failure to provide bleacher seating with a side guardrail, as required by the Building Code (Administrative Code of City of NY § 27-531 [a] [8] [d]), rendered the bleachers unsafe as a matter of law (see, Martin v Herzog, 228 NY 164; Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559, 565, n 3; cf., Juarez v Wavecrest Mgt. Team, 88 NY2d 628, 645), and then correctly left it to the jury to decide whether such unsafe condition proximately caused plaintiffs injuries and, if so, whether any comparative negligence contributed thereto (see, Azzue v Galore Realty, 172 AD2d 467, lv denied 78 NY2d 856).

The jury’s findings that plaintiffs injuries were proximately caused by the absence of a guardrail, and that no negligence on plaintiffs part contributed to his injuries, turned largely on credibility, and are not against the weight of the evidence (see, Nicastro v Park, 113 AD2d 129, 134-135).

We reject defendant’s argument that because plaintiff never instituted a CPLR article 78 proceeding challenging his termination as a probationary police officer, the trial court should not have permitted the jury to determine that he was dismissed from the police force because of the injuries sustained in this accident, and to make awards for past and future lost earnings on the basis of that finding. Plaintiff is not [63]*63challenging his termination, and an issue of fact as to whether his termination was based on his performance or the injuries he sustained in this accident was properly submitted to the jury. We find, however, the award for future lost earnings excessive to the extent indicated. We have considered defendants’ remaining contentions and find them unpersuasive. Concur — Ellerin, P. J., Nardelli, Williams, Rubin and Andrias, JJ.

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Bluebook (online)

267 A.D.2d 62, 699 N.Y.S.2d 395, 1999 N.Y. App. Div. LEXIS 12662, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elliott-v-city-of-new-york-nyappdiv-1999.

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