Placakis v. City of New York

• Decision Date: 31 December 2001
• Docket Number: 00-05329,2
• Parties: EMANUEL PLACAKIS, ET AL., APPELLANTS, v. CITY OF NEW YORK, ET AL., RESPONDENTS. 2000-05329 2000-05331 2000-05332 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT Argued -
• Court: New York Supreme Court — Appellate Division

EMANUEL PLACAKIS, ET AL., APPELLANTS v CITY OF NEW YORK, ET AL., RESPONDENTS

2000-05329

2000-05331

2000-05332

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT

Argued - June 25, 2001

December 31, 2001

Friedman & Friedman, P.C., New York, N.Y. (Daniel Friedman, Mari Angela Chiaravalotti, and Seligson, Rothman & Rothman [Martin S. Rothman and Alyne I. Diamond] of counsel), for appellants (one brief filed).

Wallace D. Gossett, Brooklyn, N.Y. (Lawrence Heisler and Lawrence A. Silver of counsel), for respondents.

DECISION & ORDER

Fred T. Santucci, J.P.

Sondra Miller

Nancy E. Smith

Stephen G. Crane, JJ.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Kings County (Steinhardt, J.), dated September 9, 1997, as, upon granting the motion of the defendant City of New York to dismiss so much of the complaint as was asserted against it, denied their cross motion to set aside the jury verdict on the issue of liability finding the plaintiff Emanuel Placakis to be 15% at fault in the happening of the accident, and set the matter down for a "retrial of the issue of allocation of fault and, upon said determination, as to the issue of damages", (2) from an order of the same court (Schneier, J.), dated December 22, 1997, which, after a second trial, denied their motion to set aside the second jury verdict, and (3), on the ground of inadequacy, from a judgment of the same court (Schneier, J.), dated April 25, 2000, which, upon a second jury verdict finding the plaintiff Emanuel Placakis to be 70% at fault in the happening of the accident, is in their favor and against the defendant New York City Transit Authority in the principal sum of only $18,600.

ORDERED that the appeals from the orders are dismissed; and it is further,

ORDERED that the judgment is reversed, on the law and the facts, the motion to set aside the second jury verdict is granted, the order dated December 22, 1997, is vacated, the order dated September 9, 1997, is modified accordingly, and the matter is remitted to the Supreme Court, Kings County, for a new trial on the issue of the apportionment of fault between the parties and thereafter, a new trial on damages, if necessary; and it is further,

ORDERED that the plaintiffs are awarded one bill of costs payable by the defendant New York City Transit Authority.

The appeals from the intermediate orders must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (Matter of Aho, 39 N.Y.2d 241). The issues raised on the appeals from the orders are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501[a][1]).

The plaintiffs commenced this action against the City of New York and the New York City Transit Authority (hereinafter the NYCTA) after the plaintiff Emanuel Placakis (hereinafter the injured plaintiff) injured his ankle when he slipped on a patch of ice and fell as he was alighting from a NYCTA bus. The ice had allegedly formed as a result of a slow leak from a defective fire hydrant which was located approximately three feet from the bus stop where the plaintiff fell. After trial, the jury found the City to be 50% at fault, the NYCTA 35% at fault, and the injured plaintiff 15% at fault. However, the court granted the City's posttrial motion and dismissed the action against it on the ground that the plaintiffs failed to establish that the City had prior notice of the defective fire hydrant.

Thereafter, the court incongruously ruled that "while retaining the jury's finding of liability * * * [there must be] a new trial, as to the allocation of fault between plaintiff and [the NYCTA]; and, after said determination, as to the issue of damages". After a second trial, the jury found the injured plaintiff 70% at fault and the NYCTA 30% at fault, and awarded damages. The court denied the plaintiffs' motion to set aside this verdict, and judgment was entered accordingly.

Contrary to plaintiffs' contention, they were not entitled to a judgment allocating to the NYCTA all of the fault which the first jury attributed to the City. Instead, the court properly decided to retain the finding of liability against both the injured plaintiff and the NYCTA, and to remand the matter for a new trial on the issue of the allocation of fault between these two remaining parties. However, we agree with the plaintiffs that the trial court erred in its instruction to the second jury. Although the court stated that the...