Betancourt v. Trump Empire State Partners, 2007 NY Slip Op 31677(U) (N.Y. Sup. Ct. 6/1/2007)
| Decision Date | 01 June 2007 |
| Docket Number | 0049457/2002 |
| Citation | 2007 NY Slip Op 31677 |
| Parties | ROBERT BETANCOURT, Plaintiff(s), v. TRUMP EMPIRE STATE PARTNERS, INDIVIDUALLY and as General Partner of TRUMP EMPIRE STATE INC., HELMSLEY-SPEAR, INC., WALGREENS EASTERN CO., INC. and KAM CONSTRUCTION COMPANY, Defendant(s). |
| Court | New York Supreme Court |
Upon the forgoing papers, defendants Trump Empire State Partners (Trump), Trump Empire State Inc. (Empire State), Helmsley-Spears, Inc. (Helmsley) and Walgreens Eastern Co. (Walgreens) seek an order, pursuant to CPLR 4404, setting aside jury verdicts as to liability and damages.
Robert Bentancourt commenced this action in November of 2002 to recover for personal injuries sustained on March 19, 2002, while in an exterior doorway of the Empire State Building. The building, located at 350 Fifth Avenue in New York County, was owned by defendant Trump Empire State Partners and managed by Helmsley-Spear, Inc. Plaintiff testified that he and his wife "ducked" into the entranceway to embrace for a goodbye kiss and that his arms went upward causing his right index finger to come into contact with the sharp edge of a conduit pipe. Plaintiff maintained that the building's owner, manager and a tenant, Walgreens Eastern Company, Inc. (Walgreens), were negligent in allowing a dangerous and unsafe condition to exist.
Trump, Helmsley and Walgreens moved for summary judgment dismissal of the complaint, and by order dated June 18, 2004 their motion was denied. Upon appeal the Appellate Division, Second Department, affirmed that portion of the order as denied summary judgment to Trump, Helmsley and Walgreens (27 A.D.3d 604 [2006]). Thereafter, separate trials as to liability and damages were held October 23, 2006 through October 27, 2006.
Prior to commencement of the liability trial, the defendants, by motion in limine, sought to preclude the plaintiff from offering evidence at trial of any repair or alteration made to the subject doorway and/or doorbell following the accident. The court granted the motion.
In his opening remarks counsel for the plaintiff advised the jury that the plaintiff, Robert Betancourt, The court sustained an objection and advised the jury to disregard any mention of injury or damage. Plaintiff's counsel then stated that the defendant Trump Empire State Partners agreed that the doorway condition was in fact dangerous and should not have remained there. Counsel informed the jury that the plaintiff and his wife had been high school sweethearts, had had marital difficulties, and at the time of the accident were in the process of reconciling. In closing, he stated that the accident caused the plaintiff's whole life to change.
In his opening remarks, defendant's counsel clarified that it was the defendants' position that the doorway was not in a dangerous condition, and that it was the carelessness of the plaintiff which had caused his injury. Defendants' counsel noted that the entranceway in which the plaintiff and his wife were standing was not a customer entrance, but a receiving doorway. He stated that the purposes of the pipe was to cover the doorbell wiring and that it was the defendants' "contention that this doorway was reasonablely safe under the circumstances." Counsel maintained that the condition was open and obvious, and that the plaintiffs action, along with that of his wife, caused the accident.
Plaintiff testified regarding his schooling, marital situation and employment. Mr. Bentancourt testified that on the date of the accident he was employed by Photobition, as an account executive and designed trade show displays. He indicated that he drew professionally.
On the date of the incident he met his wife, Yi-ding Betancourt, in front of the Empire State Building and they went to Burger King for lunch. He walked his wife back to the Empire State Building and they ducked into a doorway to get out of the rain. After giving his wife a hug and kiss, he raised his hands up slightly and hit his hand. Plaintiff's counsel then questioned Mr. Betancourt as follows:
Questioning continued along these lines with counsel repeatedly, using the words "blood" or "bleeding." Counsel inquired, Mr. Betancourt answered, "There were little shards or scrapings of metal and some debris from the piping." Counsel inquired, "Now after you made that noise and saw your hand bleeding what did you then do?" The witness replied, His attorney asked, "And did they?", to which the plaintiff replied "No." Mr. Betancourt stated that he did not report the incident at that time, and that Counsel attempted to elicit testimony from the plaintiff as to the degree or nature of the injury to his hand, asking "At some point later did you learn what had happened to your hand?" Objections to this and similar questions were sustained.
On cross examination, Robert Betancourt testified that prior to the incident he had been standing in the doorway with his wife for approximately two minutes, when his wife, "shrugged" in a playful manner, and said "I got to go." Counsel for the defendants then read deposition testimony of the plaintiff in which he testified that his wife told him The following deposition testimony was also read: Thereafter, Mr. Betancourt testified that he had moved his hands away from his wife "quickly."
On re-direct examination, plaintiff's counsel once again raised the matter of Mr. Betancourt's injury. Counsel asked: "When you testified earlier, when you realized it was a much bigger issue that you thought it was what did you mean by that?" The plaintiff testified "Well, it became — I became immobile."
Yi-ding Betancourt testified that she and the plaintiff were married in February 1998, separated early in 2002 and reconciled in February of 2003. When the incident occurred she was saying good bye to her husband in the doorway. They kissed for about a minute to a minute and a half. She stated that "I kind of nudged him because I had to go back to class and he said `what' and he put his arms and — up and then I noticed his face tensing up and when I looked down he was holding his hand and that's when I noticed that he had a severe cut on his hand." Plaintiff's counsel then asked Mrs. Betancourt whether she heard noise coming from her husband, to which she responded "It was a hurtful, this hurts type of noise." On cross examination Mrs. Betancourt testified that she gently put up her hand in front of her and shrugged her shoulders, and that the plaintiff then moved his hand and hit the pipe with such force that it cut open his finger.
After dismissing the jury for the day, the court and counsel engaged in a discussion regarding the admissibility of evidence of subsequent repairs. The court once again advised the attorneys that evidence of subsequent repairs is not admissible, unless there is an issue with respect to ownership or control.
On the second day of proceedings plaintiff entered into evidence a copy of the lease agreement between Trump and Walgreens. The attorneys stipulated that the lease would be admitted with respect to paragraphs 3, 42A, 45E, and 46B, on the issues of possession by Walgreens and its control of the subject entranceway.
The plaintiff's next witness was John Powell, Walgreens' construction superintendent, on location at the time of the incident. Mr. Powell testified that Walgreens actually took possession of the premises at the Empire State Building in or about December 2001 or January 2002, and that the door at issue was a receiving door for the store. He further testified that...
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