Foley v. City of New York

2017 NY Slip Op 4389, 151 A.D.3d 431, 57 N.Y.S.3d 464

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 6, 2017
• Docket: 3416 114390/08
• Status: Published

Opinions

Order, Supreme Court, New York County (Frank P. Ñervo, J.), entered October 8, 2015, which granted defendant’s motion pursuant to CPLR 4404 to set aside the jury’s verdict on liability and dismissed the complaint, reversed, on the law, without costs, the motion denied, and the jury verdict reinstated.

“Although ‘[t]he awareness of one defect in the area is insufficient to constitute notice of a different particular defect which caused the accident,’ where there are factual issues as to the precise location of the defect that caused a plaintiff’s fall and whether the defect is designated on the map, the question should be resolved by the jury” (Reyes v City of New York, 63 AD3d 615, 615 [1st Dept 2009], lv denied 13 NY3d 710 [2009], quoting Roldan v City of New York, 36 AD3d 484, 484 [1st Dept 2007]; see also Quinn v City of New York, 305 AD2d 570, 571 [2d Dept 2003]). The trial court improperly set aside the verdict against the City for lack of legally sufficient evidence that the City had prior written notice of the alleged defect in the curb at the corner where plaintiff indicated she fell (Administrative Code of City of NY § 7-201 [c]). A jury verdict may not be set aside for legal insufficiency unless there is “no valid line of reasoning and permissible inferences which could possibly lead rational [jurors] to the conclusion reached by the jury on the basis of the evidence presented at trial” (Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). Here, it cannot be said that it was “utterly irrational for [the] jury to reach the result it has determined upon” (id.).

At trial, plaintiff testified that she tripped and fell, due to a defect at the corner of Madison Street and Rutgers Street. Plaintiff testified that she stepped off the curb with her left foot into the crosswalk on to Madison Street and that the tip of her right foot got caught on something on the ground, which caused her to fall and fracture her ankle. Plaintiff further testified that the curb where she tripped and fell was “separated from the sidewalk and raised.” Plaintiff also entered into evidence photographs of the street corner where she fell that depicted a broken, cracked and defective curb in front of 197 Madison Street. Another photograph entered into evidence showed that the address of “197 Madison St.” was clearly reflected on the H and M Deli storefront awning, located at the corner of the intersection where plaintiff fell. Counsel for the City further highlighted this point during re-cross-examination of plaintiff regarding the precise location of her fall, when counsel inquired, “In front of that H and M Deli? . . . The deli that is addressed 197 Madison, right?” To which plaintiff replied, ‘Yes.” Additionally, the Big Apple Map, which the City stipulated to receiving, denoted an “X” in front of 197-199 Madison Street, and, according to the Big Apple Map Legend, an “X” indicates a “broken, misaligned or uneven curb.”

Our dissenting colleague contends that it is “undisputed that there are no defect marks shown at the crosswalk or the curb near the crosswalk where plaintiff fell.” This statement, however, is not wholly correct and attempts to gloss over the issue presented in this case, an issue that, appropriately, went to the jury for consideration. First, although plaintiff did indeed fall into, and ultimately land in, the crosswalk, she never testified that a defect in the crosswalk caused her to fall. Thus, our dissenting colleague’s focus on a lack of a “defect mark in the area of the crosswalk including the nearby curb area between Madison and Rutgers Streets where plaintiff fell” is misplaced. Moreover, while it is true that the Big Apple Map did not have an “X” at the precise corner where plaintiff fell, the map did depict an “X” in front of the address of 197 Madison Street, which encompasses multiple storefronts within one building, stretching from the building on the corner towards the middle of the block. Second, our dissenting colleague puts much emphasis on the key chart of the Big Apple Map in an attempt to support his argument that the map does not indicate any defect where plaintiff fell because an “extended defect” symbol does not appear “on Madison Street or at the corner where plaintiff fell.” However, the key chart to the Big Apple Map, which we have reviewed and is informative, does not provide any information as to “the length or distance of the defect,” nor can such information be gleaned from the map itself. Indeed, the Big Apple Map employee testified that the map does not indicate how far a defect is from a curb or a tree, nor does the map indicate the size, width or length of the defect. Lastly, no one testified that the defect designated on the map was 35 feet away from the defect that caused plaintiff’s accident. Rather, the City made that argument in its motion to set aside the verdict, and, as already noted, the Big Apple Map does not provide any information regarding how far the defect is from the curb or any information as to the size, width or length of the defect. Thus, whether the “precise location of the defect that caused . . . plaintiff’s fall ... is designated on the map” was, under the circumstances at bar, an issue of fact for the jury’s resolution (Reyes, 63 AD3d at 615; see also Patane v City of New York, 284 AD2d 513, 514-515 [2d Dept 2001]), and the evidence provided a sufficient basis for the jury to conclude that the City had prior written notice of the defect.

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Concur—Acosta, P.J., Kapnick and Gesmer, JJ.

Although the Reyes case involved the symbol on the Big Apple Map “showing] an extended portion of broken or misaligned curb,” the case does not, contrary to our dissenting colleague’s contention, stand for the proposition that only cases involving an “extended defect” present an issue for the jury as to the “length of the defect and whether it caused plaintiff’s fall” (Reyes at 616). Moreover, Almadotter v City of New York (16 AD3d 426 [2d Dept 2005]), cited by the Reyes Court and relied upon by our dissenting colleague does not turn only on the presence of “extended defects.” Rather there, the Court was faced with the question of whether the issue concerning the difference between the plaintiff’s description of the defect on the sidewalk and the language used in the key chart to describe the defect depicted on the Big Apple Map presented a question of fact to be resolved by the jury. The Court found that it did. The fact that the condition at issue involved an “extended section of obstructions” of the sidewalk was of no moment. Further support of this is demonstrated by the Almadotter Court’s finding that Camacho v City of New York (218 AD2d 725 [2d Dept 1995]), relied upon by the City, was clearly distinguishable because “[t]here, the one-foot-deep hole measuring three by four feet in width clearly was not the raised sidewalk noticed on the Big Apple Pothole map” (Almadotter v City of New York, 15 AD3d at 427-428). “Therefore, since the prior notice law is in derogation of the common law and must be strictly construed against the City, a notice is sufficient if it brought the particular condition at issue to the attention of the authorities” (id. at 427). As previously discussed, “[W]here there are factual issues as to the precise location of the defect that caused a plaintiff’s fall. . . the question should be resolved by the jury” (Reyes v City of New York, 63 AD3d at 615), which is what occurred here.