Fundaro v. City of New York

272 A.D.2d 516, 708 N.Y.S.2d 149, 2000 N.Y. App. Div. LEXIS 5851

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 22, 2000
• Status: Published

Opinions

—In an action to recover damages for personal injuries, the defendants appeal from a judgment of the Supreme Court, Kings County (Jackson, J., on judgment; Ramirez, J., at trial), entered October 8, 1998, which, upon a jury verdict on the issue of liability finding the defendants 75% at fault in the happening of the accident and the plaintiff 25% at fault, and upon denying their motion made at the close of evidence for judgment in their favor as a matter of law, and upon a jury verdict on the issue of damages awarding the sum of $650,000 (including $280,000 for future medical, hospital, and rehabilitation expenses), and upon reducing that sum to the sum of $487,500 to reflect the plaintiff’s share of fault, is in favor of the plaintiff and against them.

Ordered that the judgment is modified, on the facts and as a matter of discretion, by deleting the provision thereof awarding damages on the plaintiff’s cause of action for future medical, hospital, and rehabilitation expenses, and substituting therefor a provision severing that cause of action and granting a new trial with respect thereto; as so modified, the judgment is affirmed, with costs to the appellants, unless within 30 days after service upon him of a copy of this decision and order, with notice of entry, the plaintiff shall serve and file in the office of the Clerk of the Supreme Court, Kings County, a written stipulation consenting to reduce the verdict as to damages for future medical, hospital, and rehabilitation expenses from the sum of $280,000 to the sum of $100,000, and to the entry of an appropriate amended judgment in his favor on that cause of action in the principal sum of $75,000 ($100,000 less 25%); in the event that the plaintiff so stipulates, then the judgment, as so reduced and amended, is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for entry of an appropriate amended judgment accordingly.

The plaintiff slipped and fell on a wet paper towel as he descended the stairs in a New York City high school, sustaining ankle and knee injuries. After trial, the jury found the defendants 75% at fault in the happening of the accident.

Contrary to the defendants’ contention, the plaintiff adduced sufficient evidence from which the jury could rationally conclude that the defendants had constructive notice of the condition which caused his fall. Approximately two hours before his accident, the plaintiff observed litter, including styrofoam plates, milk cartons, and napkins, on the stairway. Immediately before his fall, the litter was still on the stairs. The evidence demonstrated that the debris was visible and had been present on the stairs where the plaintiff fell for a sufficient length of time prior to the accident to have permitted the defendants to have discovered and remedied the condition (see, Gordon v American Museum of Natural History, 67 NY2d 836, 837; Giambrone v New York Yankees, 181 AD2d 547). The plaintiff was not required to prove that the defendants knew or should have known of the existence of the exact item of debris which caused his fall (see, Weisenthal v Pickman, 153 AD2d 849, 851). Further, the verdict was not contrary to the weight of the evidence as it was based upon a fair interpretation of the evidence presented (see, Lolik v Big V Supermarkets, 86 NY2d 744, 746).

We find, however, that the damages awarded for future medical, hospital, and rehabilitation expenses are excessive to the extent indicated (see, CPLR 5501 [c]).

The defendants’ remaining contentions are without merit. Altman, Friedmann and Goldstein, JJ., concur.