Persaud v. N.Y.C. Transit Auth.

• Docket Number: 2023-646 K C
• Decision Date: 03 November 2023
• Citation: 2023 NY Slip Op 23365
• Parties: Shaline Persaud, Respondent, v. New York City Transit Authority, Appellant.
• Court: New York Supreme Court — Appellate Term

2023 NY Slip Op 23365

Shaline Persaud, Respondent, v. New York City Transit Authority, Appellant.

No. 2023-646 K C

Supreme Court of New York, Second Department

November 3, 2023

Deputy General Counsel, NYC Transit Authority (Timothy J O'Shaughnessy and Yolanda Ayala of counsel), for appellant.

Pollack, Pollack, Isaac & DeCicco, LLP (Brian J. Isaac Jillian Rosen and Kenneth J. Gorman of counsel), for respondent.

PRESENT:: CHEREÉ A. BUGGS, J.P., MARINA CORA MUNDY, PHILLIP HOM, JJ

Appeal from a judgment of the Civil Court of the City of New York Kings County (Lorna J. McAllister, J.), entered November 19, 2021. The judgment, upon jury verdicts on the issue of liability in favor of plaintiff and on the issue of damages awarding plaintiff the principal sums of $700,000 for past pain and suffering, and $1,100,000 for future pain and suffering, and, upon an order of that court dated September 10, 2020 (1) denying the branch of defendant's motion pursuant to CPLR 4404 (a) seeking to set aside the jury verdict on the issue of liability and for judgment as a matter of law, or, in the alternative, to set aside the jury verdict on the issue of liability as contrary to the weight of the evidence and for a new trial on the issue of liability, and (2) conditionally granting the branch of defendant's motion seeking to set aside the jury verdict on the issue of damages as excessive and for a new trial on the issue of damages, unless plaintiff stipulated to both reduce the award of damages for past pain and suffering to the principal sum of $400,000, and reduce the award of damages for future pain and suffering to the principal sum of $300,000, awarded plaintiff the principal sum of $700,000.

ORDERED that the judgment is reversed, without costs, the order dated September 10, 2020 is vacated, the branch of defendant's motion pursuant to CPLR 4404 (a) seeking to set aside the jury verdict on the issue of liability and for judgment as a matter of law is granted, and the complaint is dismissed.

Plaintiff commenced this action to recover for personal injuries sustained on January 28, 2015, after a snowstorm, when she slipped and fell on a wet floor in the mezzanine area of a subway station. At a jury trial, plaintiff's counsel did not call any witnesses employed by defendant; counsel merely read from the depositions of the cleaner who reported to work at 7:00 a.m. after plaintiff's accident, and the token booth agent who reported to work at 6:00 a.m. that morning. Plaintiff testified that the snow had stopped falling at around midnight, and that she fell at 6:00 a.m., during the morning rush hour, when the streets and sidewalks were wet from snow. Photographs and a video were admitted into evidence illustrating the wet, slushy and muddy condition of the floor shortly after plaintiff's accident. During its case, defendant called a cleaner who testified that she cleaned the mezzanine floor between 2:05 and 3:00 a.m. on January 28, 2015, and that the floor was dry when she left the station at 3:00 a.m.

After the jury returned a verdict in favor of plaintiff on the issue of liability, a trial on the issue of damages was held. The jury returned a verdict awarding plaintiff $700,000 for past pain and suffering, and $1,100,000 for future pain and suffering. After the trial, defendant moved, pursuant to CPLR 4404 (a), to set aside the jury verdict on the issue of liability and for judgment as a matter of law, or, in the alternative, to set aside that jury verdict as contrary to the weight of the evidence and order a new trial, or, in the alternative, to set aside the jury verdict on the issue of damages as excessive. The court denied the branch of defendant's motion seeking to set aside the jury verdict on the issue of liability, but granted the branch of the motion seeking to set aside the jury verdict on the issue of damages and ordered a new trial thereon, unless plaintiff stipulated to reduce the awards to $400,000 for past pain and suffering, and $300,000 for future pain and suffering. On November 19, 2021, the Civil Court entered a judgment awarding plaintiff the principal sum of $700,000.

"[A] defendant may be held liable for an injury proximately caused by a dangerous condition created by water, snow, or ice tracked into a [premises] if it either created the hazardous condition, or had actual or constructive notice of the condition and a reasonable time to undertake remedial action" (Peralta-Mejia v Park Terrace Owners LLC, 200 A.D.3d 727, 728 [2021]; see Radosta v Schechter, 171 A.D.3d 1112, 1113 [2019]; Gonzalez v Jenel Mgt. Corp., 11 A.D.3d 656, 656 [2004]). A "general awareness that [precipitation] may be tracked into a [premises] during inclement weather is insufficient to establish constructive notice of the particular...