Cusumano v. City of N.Y.

• Decision Date: 06 March 2013
• Citation: 104 A.D.3d 639,2013 N.Y. Slip Op. 01373,960 N.Y.S.2d 194
• Parties: Nocenzu CUSUMANO, et al., appellants, v. CITY OF NEW YORK, respondent.
• Court: New York Supreme Court — Appellate Division

104 A.D.3d 639

960 N.Y.S.2d 194

2013 N.Y. Slip Op. 01373

Nocenzu CUSUMANO, et al., appellants,

v.CITY OF NEW YORK, respondent.

Supreme Court, Appellate Division, Second Department, New York.

March 6, 2013.

Miller Eisenman & Kanuck, LLP, New York, N.Y. (Michael P. Eisenman of counsel), for appellants.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Elizabeth S. Natrella of counsel), for respondent.

REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, L. PRISCILLA HALL, and ROBERT J. MILLER, JJ.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Taylor, J.), dated November 23, 2011, as granted that branch of the defendant's motion which was pursuant to CPLR 4404(a) to set aside a jury verdict on the issue of liability finding the defendant at fault in the happening of the accident and for judgment as a matter of law.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the defendant's motion which was pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of liability and for judgment as a matter of law is denied, the jury verdict is reinstated, so much of the order as denied, as academic, the alternative branch of the defendant's motion which was to set aside the jury verdict as contrary to the weight of the evidence and for a new trial is vacated, that branch of the defendant's motion is denied on the merits, and the matter is remitted to the Supreme Court, Queens County, for a determination on the issue of damages.

The plaintiffs alleged that they sustained damages as a result of an incident where the plaintiff Nocenzu Cusumano (hereinafter the injured plaintiff) fell down a staircase. At a retrial of this action ( see Cusumano v. City of New York, 63 A.D.3d 5, 877 N.Y.S.2d 153,revd.15 N.Y.3d 319, 910 N.Y.S.2d 410, 937 N.E.2d 74), the injured plaintiff, a firefighter, testified that on December 22, 1999, he was attending a training seminar at a building owned by the defendant. When he attempted to access the basement of the building, he slipped on debris in a stairwell, lost his balance, and fell forward. The injured plaintiff testified that as he fell forward, he unsuccessfully attempted to grab a handrail. In a report prepared in connection with the accident, the injured plaintiff stated that he “tried to catch his balance by grabbing for the bannister, but was unable to do so.” The injured plaintiff testified that he fell down the staircase and landed on the basement floor.

The plaintiffs presented expert testimony to establish that the handrail, which was flush against the wall, was dangerous and defective. The plaintiffs asserted that the defective nature of the handrail violated Administrative Code of the City of New York §§ 27–127 and 27–128, and that these violations were a cause of the injured plaintiff's accident.

The jury returned a verdict on the issue of liability finding the defendant at fault in the happening of the accident. The defendant subsequently moved pursuant to CPLR 4404(a) to set aside the jury verdict and for judgment as a matter of law or, alternatively, to set aside the jury verdict as contrary to the weight of the evidence and for a new trial. In the order appealed from, the Supreme Court determined that there was no evidence demonstrating that the allegedly defective handrail caused the injured plaintiff's accident. Accordingly, it granted that branch of the defendant's motion which was to set aside the jury verdict on the issue of liability and for judgment as a matter of law. It denied, as academic, that branch of the defendant's motion which was to set aside the jury verdict as contrary to the weight of the evidence and for a new trial.

For a court to conclude that a jury verdict is not supported by legally sufficient evidence, it must determine that there is “no valid line of reasoning and permissible inferences which could possibly lead rational [people] 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, 410 N.Y.S.2d 282, 382 N.E.2d 1145;see Frenchman v. Westchester Med. Ctr., 77 A.D.3d 618, 618–619, 909 N.Y.S.2d 107). Here, contrary to the Supreme Court's determination, the jury could have rationally concluded that the defective nature of the handrail...