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Foley v. City of New York

Supreme Court of New York, First Department

June 6, 2017

Janice Foley, Plaintiff-Appellant,
v.
The City of New York, Defendant-Respondent.

          McMahon, Martine & Gallagher, LLP, Brooklyn (Patrick W. Brophy of counsel), for appellant.

          Zachary W. Carter, Corporation Counsel, New York (Max O. McCann of counsel), for respondent.

          Acosta, P.J., Tom, Kapnick, Kahn, Gesmer, JJ.

         Order, Supreme Court, New York County (Frank P. Nervo, 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 A.D.3d 615');">63 A.D.3d 615, 615 [1st Dept 2009], lv denied 13 N.Y.3d 710');">13 N.Y.3d 710');">13 N.Y.3d 710');">13 N.Y.3d 710 [2009], quoting Roldan v City of New York, 36 A.D.3d 484');">36 A.D.3d 484, 484 [1st Dept 2007]; see also Quinn v City of New York, 305 A.D.2d 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 N.Y.2d 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 A.D.3d at 615; see also Patane v City of New York, 284 A.D.2d 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. [1]

          All concur except Tom and Kahn, JJ. who dissent in a memorandum by Tom, J. as follows:

          TOM, J. (dissenting)

         I would find that the trial court properly 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 crosswalk at the corner where plaintiff indicated she fell (Administrative Code of City of NY § 7-201[c]). Plaintiff's evidence was insufficient to show that the markings on the Big Apple Map constituted notice of defects at the location of her accident, since she fell at a completely different location than the sidewalk defect marking on the Big Apple Map (see Vega v 103 Thayer St., LLC, 23 N.Y.3d 1027');">23 N.Y.3d 1027 [2014]; Roldan v City of New York, 36 A.D.3d 484');">36 A.D.3d 484 [1st Dept 2007]). Accordingly, I respectfully dissent.

         At trial, plaintiff specifically testified that she fell at "the corner in the crosswalk right after the light pole" by the intersection of Madison Street at Rutgers Street. Referring to photographs in evidence that depicted a grate near the crosswalk and light pole, plaintiff remarked that she was sure that this corner was the location, stating, "I know where I fell. I didn't want to hit that grate with my face. That's how I remember exactly where I fell." Plaintiff marked a photograph showing the area of the crosswalk where she fell. While plaintiff recognized the "Chen Wong restaurant, " also numbered 197 Madison Street, and Madison Bagels and Grocery, she stated that the accident did not take place in front of those locations. Plaintiff's unequivocal testimony was that she fell in the crosswalk at an intersection and not on the sidewalk where the defects are indicated on the Big Apple Map. It is undisputed that there are no defect marks shown at the crosswalk or the curb near the crosswalk where plaintiff fell, and there is no basis for the majority's suggestion that stating there are no defect marks at the corner is "not wholly correct."

         In contrast with plaintiff's testimony, the Big Apple Map received in evidence shows a straight line and an "X" (indicating a section of broken, misaligned or uneven curb) on the sidewalk approximately at the midpoint of the building addressed 197 Madison Street and, based on photographs in evidence, at least two large storefronts' length away from the corner of Madison and Rutgers Streets - the area where plaintiff testified she fell. The key chart to the Big Apple Map symbols, also received into evidence, shows extended and nonextended pavement defects. The extended defects are shown by two same symbols of a particular type of defect connected by a straight line reflecting the extended length or distance of the defect. However, none of these "extended defect" symbols appear on Madison Street or at the corner where plaintiff fell. The nonextended or localized defect is shown by a singular symbol reflecting a particular type of pavement defect. Here, the symbols placed on Madison Street are depicted as nonextended, localized defects that could not fairly be read as encompassing the entire block or reaching to the corner where plaintiff fell, as the majority seeks to do.

         There is nothing in the record that shows a defect mark in the area of the crosswalk including the nearby curb area between Madison and Rutgers Streets where plaintiff fell. Nor did the location of the defect markings in front of 197 Madison Avenue present an issue for the jury's consideration, as the jury could not reasonably find that a single defect, depicted by a singular mark, at least two large storefronts' length away from the corner where plaintiff fell to be a proximate cause of her fall. The defect mark on Madison Street is not close to the corner where plaintiff fell, as the majority intimates, and is a significant distance away from the corner. Contrary to the majority's position, no fair interpretation of the evidence presented in this case allows for the conclusion that the localized defects could somehow extend past the length of two large storefronts and then wind their way to the crosswalk where plaintiff fell, and thus the jury's verdict cannot stand (Goldstein v Snyder, 3 A.D.3d 332, 333 [1st Dept 2004] [considering whether the "verdict is contrary to any conclusion that might be reached on the basis of a fair interpretation of the evidence"]; Cohen v Hallmark Cards, 45 N.Y.2d 493, 498-499 [1978]). The City points out in its motion to set aside the verdict that using the scale on the map, the defect markings on the Big Apple Map indicate the defects in the sidewalk were about 35 feet from the corner where plaintiff claims she fell.

         The majority is attempting to conflate a localized defect and an extended defect, which is an unreasonable conclusion. In this regard, the majority states that the "key chart to the Big Apple Map... does not provide any information as to the " length or distance of the defect.'" However, that point might be relevant if we were faced with an extended defect and the jury could have assessed the length of the defect to determine whether it reached the corner. Significantly, this case involves a localized defect that under no circumstances could fairly be seen to extend more than two large storefronts' length to the area where plaintiff fell. The majority avoids the meaning of the key ...


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