Giraldez v. City of New York

• Decision Date: 25 April 1995
• Citation: 625 N.Y.S.2d 517,214 A.D.2d 461
• Parties: , 100 Ed. Law Rep. 240 Marc GIRALDEZ, Plaintiff-Appellant, v. CITY OF NEW YORK, Defendant, and Board of Education of the City of New York, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 517

625 N.Y.S.2d 517

214 A.D.2d 461, 100 Ed. Law Rep. 240

Marc GIRALDEZ, Plaintiff-Appellant, v. CITY OF NEW YORK, Defendant, and Board of Education of the City of New York, Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

April 25, 1995.

E. Levine, for plaintiff-appellant.

J.S. Earle, for defendant-respondent.

Before MURPHY, P.J., and ROSENBERGER, KUPFERMAN, NARDELLI and MAZZARELLI, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, Bronx County (Barry Salman, J.), entered February 2, 1994, upon a jury verdict apportioning liability 40% to defendant Board of Education and 60% to plaintiff and awarding damages in the amount of $10,000, modified, on the law and the facts, to the extent of vacating the judgment in favor of plaintiff-appellant and ordering a new trial on the issue of damages for past and future pain and suffering, unless the defendant-respondent, within 20 days after service upon its attorney of a copy of the order herein, with notice of entry, serves and files in the office of the clerk of the trial court a written stipulation consenting to increase the total award to $100,000, subject to the above apportionment, and the entry of an amended judgment in accordance therewith. If defendant so stipulates, the judgment, as amended and increased, is affirmed, without costs.

Plaintiff tripped on a concrete depression and sustained a fracture of the lateral malleolus of the right ankle. Contrary to plaintiff's claim, there is no basis to disturb the jury's finding with respect to plaintiff's comparative negligence. "For a court to conclude that a jury verdict is not supported by sufficient evidence, there must be no valid line of reasoning and permissible inferences from that evidence which could possibly lead rational people to the conclusion reached by the jury." (Dauria v. City of New York, 178 A.D.2d 289, 290, 577 N.Y.S.2d 64, lv. denied 80 N.Y.2d 751, 587 N.Y.S.2d 287, 599 N.E.2d 691.) Based on the size and location of the depression and the time of day and lighting conditions at the time of the accident, the jury's apportionment of 60% of the fault to plaintiff was adequately supported by the evidence (Hodges v. City of New York, 195 A.D.2d 269, 599 N.Y.S.2d 586). Further, "[t]he jury had a right to consider all factors, including plaintiff's disregard of a hazard that could have been avoided by the reasonable exercise of prudence and caution" (id., at 270, 599 N.Y.S.2d 586). Nevertheless, upon our review of the evidence, we conclude that the amount of the damages award is inadequate to the extent indicated (CPLR 5501[c].

Plaintiff argues that the court erred in permitting the school custodian to testify that the hole in the pavement did not constitute a dangerous condition that warranted repair, asserting that the custodian was improperly permitted to testify as...