Giaccotto v. New York City Transit Authority

• Decision Date: 17 December 1990
• Citation: 150 Misc.2d 164,566 N.Y.S.2d 450
• Parties: Alfred GIACCOTTO, Plaintiff, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant.
• Court: New York Supreme Court

Page 450

566 N.Y.S.2d 450

150 Misc.2d 164

Alfred GIACCOTTO, Plaintiff, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant.

Supreme Court, New York County,

Part 40A.

Dec. 17, 1990.

Malachy J. Duffy, Garden City, for plaintiff.

Thomas Michael Laquercia, of counsel, Smith & Laquercia, P.C., New York City, for defendant.

LOUISE GRUNER GANS, Justice.

After trial of this personal injury action, the jury, by special verdict, found defendant New York City Transit Authority liable in negligence and awarded plaintiff damages in the amount of $600,000. Neither party had objected to the Court's charge to the jury. The Transit Authority has moved for judgment notwithstanding the verdict, CPLR 4401, or in the alternative, for a new trial, CPLR 4404(a).

The accident underlying this action occurred on November 28, 1982, when plaintiff was 60 years old. At the time of trial plaintiff's age was 68. The jury found that on November 28, 1982, while walking on Eighth Avenue between W. 39th and W. 40th Street, plaintiff stepped on a loosened subway grating, and, when the grating gave way, he fell into a subway air shaft. The estimates of the depth of the air shaft ranged from 13 feet (Defendant's Exhibit A, Police Accident Report), to from 10 to 15 feet. It is not disputed that in the course of the fall plaintiff broke his left arm. Plaintiff and his surgeon, Dr. Leppard, testified that despite two major operations in 1982 and 1983, plaintiff's use of the arm is limited, that he is unable to sleep lying down, and that he was unable to continue working as a presser, the work he had done for close to 40 years. Plaintiff never returned to work and retired in 1984 at the age of 62.

Although the defendant Transit Authority as a common carrier, exercises both proprietary and governmental functions [see Weiner v. Metropolitan Transp. Authority, 55 N.Y.2d 175, 448 N.Y.S.2d 141, 433 N.E.2d 124 (1982) ], defendant has never claimed that the acts or omissions of the Transit Authority, which are the subject of this action, immunize it from liability.

Plaintiff's case was tried on the theory not of design defect, as defendant contends on this motion, but on the theory that defendant Transit Authority negligently maintained the access grating, as part of the series of gratings in front of 616 Eighth Avenue, in an unlocked and unsecured condition which was dangerous and which proximately caused plaintiff's injuries.

There was no dispute about the standard design of the Transit Authority's subway gratings. The Transit Authority employees, past and present, called by both sides, agreed that most gratings were cemented or welded to the sidewalk, that at certain intervals, there was a grating which was not permanently secured to the sidewalk, but was held in position by a locking mechanism and attached to an adjoining permanently secured grating by means of a chain, and that a special Transit Authority key was required to lock and unlock this grating, which was variously referred to as an access grating, lock grating or vent grating. The grates and air shafts under them provide ventilation for the subway and can be used for access and egress in case of subway fire.

Analyzing separately below, first defendant's arguments in support of judgment notwithstanding the verdict as a matter of law, and second defendant's arguments in support of a new trial, the Court concludes that defendant's motion should be denied, except for a reduction of the jury's award of medical expenses from $25,000 to $13,500.

Motion for Judgment Notwithstanding the Verdict as a Matter of Law

On a motion pursuant to CPLR 4404(a) for judgment notwithstanding the verdict or judgment as a matter of law, the test is whether no rational process could support the jury's verdict upon the evidence presented. Cohen v. Hallmark Cards, Inc., 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145 (1978); Nicastro v. Park, 113 A.D.2d 129, 132, 495 N.Y.S.2d 184 (2d Dep't 1985). "[T]he 'matter of law' standard is the same as that used for judgment during the trial under CPLR 4401." Siegel, New York Practice (2d Ed.) section 405 at 613. Cf. Blum v. Fresh Grown Preserve Corp., 292 N.Y. 241, 245, 54 N.E.2d 809 (1944); Lipsius v. White, 91 A.D.2d 271, 276-277, 458 N.Y.S.2d 928 (2d Dep't 1983); Candelier v. City of New York, 129 A.D.2d 145, 517 N.Y.S.2d 486 (1st Dep't 1987); Dooley v. Skodnek, 138 A.D.2d 102, 529 N.Y.S.2d 569 (2d Dep't 1988). In considering the motion, the Court may not weigh the evidence, but must view it in the light most favorable to the non-moving party. Sagorsky v. Malyon, 307 N.Y. 584, 586, 123 N.E.2d 79 (1954); Negri v. Stop & Shop, Inc., 65 N.Y.2d 625, 626, 491 N.Y.S.2d 151, 480 N.E.2d 740 (1985). All questions of credibility must be treated as if resolved in plaintiff's favor, Sagorsky v. Malyon, supra at 586, 123 N.E.2d 79; Candelier v. City of New York, supra, 129 A.D.2d at 147, 517 N.Y.S.2d 486, and the non-moving party, in this case the plaintiff, is entitled to every reasonable inference which could reasonably be drawn in his favor from the proofs submitted. Betzag v. Gulf Oil Corp., 298 N.Y. 358, 364, 83 N.E.2d 833 (1949); Candelier v. City of New York, supra; Lipsius v. White, 91 A.D.2d 271, 276-277, 458 N.Y.S.2d 928 (2d Dep't.1983).

In order to warrant submission of plaintiff's negligence case to the jury, plaintiff's evidence was required to demonstrate three elements: first, the existence of a duty owed by defendant to plaintiff; second, a breach of that duty by defendant; and third, that injury to plaintiff was proximately caused by the breach. Benjamin v. City of New York, 99 A.D.2d 995, 473 N.Y.S.2d 450, aff'd, 64 N.Y.2d 44, 484 N.Y.S.2d 525, 473 N.E.2d 753 (1984). The Transit Authority does not dispute that it has a duty to use reasonable care in maintaining the portion of the sidewalk containing its subway gratings in safe repair and to inspect and maintain them so as to prevent unreasonable risk of harm to the pedestrian public. However, defendant argues for judgment notwithstanding the verdict for plaintiff's failure, as a matter of law, to establish a prima facie case of negligence with respect to the elements of notice and proximate cause.

On the issue of notice, defendant contends that establishing a prima facie case of actual or constructive notice to the Transit Authority of an unsecured grating at the location where plaintiff's accident occurred was a precondition to a prima facie showing of breach of its duty to maintain the grating in a reasonably safe condition. Although this was this Court's charge to the jury, according to the Transit Authority, no finding of actual or constructive notice was possible, as a matter of law, on the evidence presented. In opposition to this aspect of defendant's motion, plaintiff argues, as he did at trial, that no proof of prior notice was required because defendant Transit Authority's use of the sidewalk for its subway gratings was a special use not subject to any prior notice requirement.

With respect to the issue of notice, defendant also contends that the Court erred in permitting plaintiff to produce the testimony of his notice witness, Alex Abouleinian, since plaintiff had failed to provide defendant with an updated notice as to this witness' last known address, as demanded, and, as required by plaintiff's continuing obligation to provide discovery.

Mr. Abouleinian had been employed as store manager at a store at 614 Eighth Avenue, immediately adjoining the scene of the accident. He testified that during the period from 1980, when he started working there, and until the date of the accident, he had on "many" occasions witnessed people pushing long sticks through the subway grates in front of 614 and 616 Eighth Avenue and had seen people opening and removing a grate or grates. Although he testified that he saw grates being opened "many times," Mr. Abouleinian could not specify the dates or the number of times that he made these observations or which of the grates at that location he saw being opened. Mr. Abouleinian also observed the aftermath of plaintiff's accident and described seeing Mr. Giaccotto in the open air shaft previously covered by a subway grating.

With the benefit of hindsight, I conclude first, that plaintiff was correct in arguing that he was not required to establish notice in order to show a breach of duty by the Transit Authority, and second, that at trial, plaintiff produced sufficient evidence to establish a prima facie case of constructive notice.

The installation of the subway gratings in public sidewalks clearly constitutes a special use and under long-standing precedent no notice of the unsecured condition of the grating which gave way under plaintiff's feet was required. However, in any event, I am satisfied that a rational jury could have found from plaintiff's evidence that the Transit Authority had constructive notice of the unsecured subway grating and that my decision not to preclude the testimony of Alex Abouleinian was a proper exercise of discretion.

The term or concept of a special use of the public sidewalk refers to a construction in the sidewalk, not necessary for its proper construction or maintenance as a public sidewalk, and which is designed to create a special benefit to the user of the construction. Clifford v. Dam, 81 N.Y. 52 (1880); Nickelsburg v. City of New York, 263 App.Div. 625, 34 N.Y.S.2d 1 (1st Dep't 1942). Although the issue of responsibility for conditions created by a special use is most commonly addressed with respect to abutting property owners. Irvine v. Wood, 51 N.Y. 224 (1872); Trustees of the Village of Canandaigua v. Foster, 156 N.Y. 354, 50 N.E. 971 (1898); Olivia v. Gouze, 285 A.D. 762, 140 N.Y.S.2d 438 (1st Dep't 1955), aff'd 1 N.Y.2d 811, 153 N.Y.S.2d 71, 135 N.E.2d 602 (1956), special users are not limited to abutting owners. A variety of institutional entities, including the municipality itself, have been treated as...