Pollack, Pollack, Isaac, & DeCicco, New York (Brian J.
Isaac of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Elizabeth
I. Freedman and Diana Lawless of counsel), for the City of
New York, respondent.
Alventosa & Zajac, Jericho (Andrew Zajac of counsel), for
Halcyon Construction Corp., respondent.
Sweeny, J.P., Mazzarelli, Moskowitz, Kahn, JJ.
Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered
July 17, 2015, in favor of defendant and third-party
defendant, unamimously reversed, on the law, without costs,
plaintiff's motion to set aside an order that had granted
the motion of defendant the City of New York and third-party
defendant Halcyon Construction Corp. for a directed verdict
granted, the judgment vacated, the complaint and third-party
complaint reinstated, and the matter remitted for a new
trial. Appeal from order, same court and Justice, entered
June 22, 2015, which denied plaintiff's motion to set
aside the court's decision granting the City's motion
for a directed verdict, unanimously dismissed, without costs,
personal injury action, plaintiff alleged that he was on
foot, crossing the east side of Mansion Street at its
intersection with St. Lawrence Avenue in the Bronx, when he
fell into a sinkhole. Plaintiff's theory of the case was
that the City and its pavement restoration contractor,
third-party defendant Halcyon Construction Corp., performed
work that resulted in the creation of the sinkhole in which
to plaintiff, the area inside the sinkhole was mushy and wet.
The evidence at trial showed that two weeks earlier, a water
main in the northwest corner of the intersection had burst.
The City's Department of Environmental Protection
repaired the water main; approximately one week later,
Halcyon backfilled the hole and repaved the intersection.
court precluded plaintiff from introducing into evidence
photographs of the sinkhole, taken two weeks after the
alleged accident, finding that they did not fairly and
accurately depict the way the accident site looked on the
date of the alleged accident. Further, plaintiff sought to
introduce highway specifications that the City had created
and published through the Department of Transportation,
arguing that introduction into evidence was proper because
the specifications were incorporated into the contract
between the City and Halcyon. The court, however, precluded
plaintiff from introducing the specifications. In so doing,
the court found that plaintiff failed to demonstrate that the
specification were not inadmissible "internal rules,
" which would improperly create a standard of care
higher than the one imposed by the common law. The court also
would not permit plaintiff to have the specifications marked
as a court exhibit.
at trial, the court quashed two of plaintiff's subpoenas,
the first issued to a Halcyon employee, who, according to
plaintiff, was to offer testimony concerning Halcyon's
contract with the City - specifically, that the contract
renewed itself, and thus, that an earlier contract was the
same as the contract in effect at the time of plaintiff's
alleged accident. The other subpoena was issued to a City
inspector, who purportedly was to testify about his
first-hand observations of Halcyon's repairs to the site.
In refusing to permit plaintiff to call those two witnesses,
the trial court found that plaintiff was attempting to engage
in post note of issue discovery.
plaintiff rested his case, the City and Halcyon moved
separately for directed verdicts. The court granted the
City's motion, and, although plaintiff had no direct
claims against Halcyon, also granted Halcyon a directed
verdict. In so doing, the court found insufficient evidence
that defendants affirmatively created the condition. At any
rate, the court found, even assuming for the sake of argument
that there had been nonfeasance in making the repairs, that
nonfeasance did not rise to the level of satisfying
plaintiff's burden. The City did not object to the
directed verdict in Halcyon's favor, and thus, its
third-party complaint against Halcyon was effectively
dismissed in accordance with the judgment.
then moved for an order setting aside the decision granting
defendants' motion for a directed verdict. Among other
things, plaintiff argued that the court wrongfully precluded
him from moving the specifications into evidence, annexing to
the motion the specifications that the trial court refused to
mark as a court exhibit. The trial court denied
plaintiff's motion on the ground that plaintiff failed to
annex the transcript of his trial testimony, without which
the court could not meaningfully review the evidentiary
issues raised in the motion. The court further found that the
specifications were inadmissible internal rules.
trial court erred in granting defendants' motions for a
directed verdict, as there was evidence sufficient to support
a reasonable jury's finding that the City and Halcyon
were affirmatively negligent in failing to properly maintain
the street in a safe condition or in creating the sinkhole
into which plaintiff allegedly fell, or both (see Ryals v
New York City Tr. Auth., 79 A.D.3d 597');">79 A.D.3d 597 [1st Dept 2010];
see also Brito v Stratford Five Realty, LLC, 118
A.D.3d 472 [1st Dept 2014]).
begin, the trial court erred in precluding pictures of the
accident site (see Saporito v City of New York, 14
N.Y.2d 474, 476-477 ). Plaintiff authenticated the
photographs at his deposition, and further testimony at trial
could have explained how and why the scene depicted in the
photos did or did not differed from the scene on the day of
the accident (see Saporito, 14 N.Y.2d at 476-477).
Exclusion of the photographs meant that plaintiff was unable
to show the jury the hole into which he allegedly fell.
should the court have precluded the City's specifications
incorporated into its contract with Halcyon. The
specifications were expressly incorporated into the contract
between Halcyon and the City; thus, they applied not only to
the City itself, but also to third parties. Therefore, they
were admissible as potential evidence of defendants'
negligence (see generally Diaz v Vasques, 17 A.D.3d
134 [1st Dept 2005], lv denied5 N.Y.3d 706');">5 N.Y.3d 706 ),
and indeed, the City failed to show how the specifications
transcended the duty of reasonable care. The trial
court's exclusion of this evidence regarding the