Martin v. McLaughlin
| Decision Date | 12 June 1990 |
| Citation | 162 A.D.2d 181,557 N.Y.S.2d 1 |
| Parties | Gertrude MARTIN, Plaintiff-Respondent, v. Thomas V. McLAUGHLIN, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
A. Freund, New York City, for plaintiff-respondent.
R.P. Marin, New York City, for defendant-appellant.
Before KUPFERMAN, J.P., and CARRO, ROSENBERGER, ELLERIN and RUBIN, JJ.
Order, Supreme Court, New York County (Kenneth Shorter, J.), entered on or about November 30, 1988, which granted plaintiff's motion to set aside the jury verdict in favor of defendant unless defendant stipulated to judgment in the amount of $21,000, unanimously reversed, on the law and the facts, the verdict reinstated and the entry of judgment thereon directed in favor of defendant, without costs.
Plaintiff brought this action to recover damages for personal injuries suffered as a result of a fall in her apartment building. At approximately 10:00 A.M. on November 6, 1984, the then 50 year old plaintiff began to walk down the steps leading from the second floor of the building located at 124 E. 117th Street, Manhattan, when, according to her testimony at trial, her left sneaker caught under a piece of metal which was raised at the front of the top step causing her to fall head first down the entire flight of concrete stairs. Plaintiff injured her ankle and stated that a young man from the building helped her back to her apartment where an ambulance was called. Plaintiff was admitted to Metropolitan Hospital where she remained for five days.
Plaintiff further testified that the metal lip had existed on the stairway for five or six years, that the linoleum around the area where she fell was worn and that the lighting fixture in the hallway was not in working order at the time of her fall. She added that since the accident, she was unable to walk for any appreciable distance and was in constant pain.
Plaintiff's doctor, an orthopedic surgeon to whom she was referred by her attorney, and whom she visited on 35 occasions between October of 1985 until the middle of 1986, testified that he treated plaintiff for a fractured ankle after she was released from the hospital. He found that plaintiff had atrophy of the muscles and lacked thickness of her joints which decreased her mobility. In his opinion, the damage to plaintiff's ankle was permanent and would require surgery at some future date.
Plaintiff also testified that she had not worked for two years prior to the incident nor had she been employed since. However, on cross examination, plaintiff revealed that in fact she had worked for an elderly gentleman in the Bronx both before and after the accident. She insisted, however, that she only cooked his meals and sat with him. Her daughter-in-law testified that after the accident, plaintiff travelled from her apartment in Manhattan to this gentleman's house in the Bronx three times a week by subway. An investigator retained by counsel for defendant, the owner of the building where plaintiff fell, surreptitiously videotaped plaintiff walking five blocks from her apartment to a bus stop, riding the bus, and then walking up two flights of stairs to an elevated train station. After getting off the train, plaintiff walked to a house in the Bronx where she discarded her cane and walked to a supermarket, returning to the house with two large bags of groceries.
The photograph of the scene of the accident introduced into evidence by plaintiff's counsel showed some discoloration in the linoleum tiles but failed to evidence the existence of a raised piece of metal. In addition, defendant testified that after he purchased the building in 1983, he performed extensive repairs and conducted periodic inspections of the building along with two engineers and a contractor. Although defendant conceded that the surface of the tile at the edge of the first step was worn, he stated that it was worn smoothly and contained no bumps or ruts. He also stated that he had installed a fluorescent lighting fixture in the hallway by the second floor stairwell and that a window on the landing provided additional illumination.
A civil engineer hired by the Department of Housing and Urban Development had inspected the building on April 24th, April 30th, May 1st, and May 2nd of 1984 and found no defects in the stairways. His report...
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