Saintume v. Lamattina

• Decision Date: 31 March 2021
• Docket Number: 2019–08214,Index No. 607217/15
• Citation: 146 N.Y.S.3d 172,192 A.D.3d 1156
• Parties: Lyonnel SAINTUME, respondent, v. Elizabeth LAMATTINA, appellant.
• Court: New York Supreme Court — Appellate Division

192 A.D.3d 1156

146 N.Y.S.3d 172

Lyonnel SAINTUME, respondent,

v.Elizabeth LAMATTINA, appellant.

2019–08214

Index No. 607217/15

Supreme Court, Appellate Division, Second Department, New York.

Argued—January 23, 2020

March 31, 2021

Baxter Smith & Shapiro, P.C.(Saretsky Katz & Dranoff, LLP, New York, N.Y. [Patrick Dellay and Eric Dranoff ], of counsel), for appellant.

Rosner Russo Shahabian, PLLC, Uniondale, N.Y. (Allen J. Rosner of counsel), for respondent.

REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, COLLEEN D. DUFFY, HECTOR D. LASALLE, BETSY BARROS, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an interlocutory judgment of the Supreme Court, Nassau County(Arthur M. Diamond, J.), entered June 19, 2019.The interlocutory judgment, upon a jury verdict on the issue of liability finding the defendant to be 100% at fault in the happening of the accident, and upon an order of the same court dated May 6, 2019, denying the defendant's motion pursuant to CPLR 4404(a) to set aside the jury verdict and for judgment as a matter of law dismissing the complaint, or, in the alternative, for a new trial on the issue of liability, is in favor of the plaintiff and against the defendant on the issue of liability.

ORDERED that the interlocutory judgment is reversed, on the law, with costs, that branch of the defendant's motion which was pursuant to CPLR 4404(a) to set aside the jury verdict and for judgment as a matter of law dismissing the complaint is granted, and the order dated May 6, 2019, is modified accordingly.

The plaintiff, an exterminator, allegedly was injured on August 7, 2013, when he partially fell through the floor of an unfinished attic located in a home then owned by the defendant.At the liability trial, the plaintiff testified, in relevant part, that he was at the defendant's home to address a bee problem.After walking around the house and inspecting the outside, the plaintiff asked the defendant if he could go up into the attic.In order to get to the hatch leading to the attic, the plaintiff and the defendant had to clear a closet that was "packed with luggage and clothes and stuff like that."The plaintiff then climbed a ladder into the attic.

The plaintiff described the unfinished attic as consisting of large beams that he referred to as "main beams," and his trial counsel repeatedly referred to as "support beams"(hereinafter main beams), running parallel to each other from one side of the attic to the other, as well as smaller pieces of wood (hereinafter smaller pieces of wood), which the plaintiff described as "little pieces of beams on top, like holding some part of—I don't know—to hold the insulation there or whatever, but they put on top of the beams, you know, but not really close enough, you know, very shattered, you know."

After spending approximately 25 minutes in the attic, walking on the main beams, the plaintiff stepped onto one of the smaller pieces of wood.The plaintiff did not know whether the smaller piece of wood was intended to be walked on, but it was wide enough to place his foot on it.Upon doing so, however, the smaller piece of wood gave way and the plaintiff's leg went through the insulation and the layer of sheetrock underneath.He was able to break his fall by holding onto the main beams.

After the accident, the plaintiff observed the broken smaller piece of wood, and when asked to describe what he saw, he answered: "It's like up there, you know, but I don't really—I saw the beams there, but I never really, you know—that day when I saw the beams, my main concern was to get down, you know, yes."When pressed further by his own counsel, and over the defendant's objection, he added that the smaller piece of wood that broke was "discolored" and "pretty damp."

After the accident, the defendant cleaned up the debris that had fallen through the hole in the ceiling caused by the plaintiff's fall.She found no wood, but only little pieces of sheetrock and insulation.The insulation was pink—not discolored—and the sheetrock was dry.

Prior to the accident, the defendant had not looked into the attic for "several years."However, she testified that workmen regularly went into the attic "once a year, maybe once every two years" to service the central air conditioning unit.She never had any problems with condensation or leaking from the air conditioning unit, and never observed any discoloration or staining on the ceiling from water damage.

The jury returned a verdict in favor of the plaintiff, finding the defendant 100% at fault in the happening of the accident.The defendant subsequently moved pursuant to CPLR 4404(a) to set aside the jury verdict and for judgment as a matter of law dismissing the complaint, or, in the alternative, for a new trial on the issue of liability.The Supreme Court denied that motion in an order dated May 6, 2019, and subsequently entered an interlocutory judgment upon the verdict and the order.The defendant now appeals from the interlocutory judgment.

For a court to conclude as a matter of law that a jury verdict is not supported by sufficient evidence, it must find that there is simply no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury on the basis of the evidence presented at trial (seeCohen v. Hallmark Cards,45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145;Allen v. Federation of Jewish Philanthropies of N.Y.,175 A.D.3d 1226, 1228, 109 N.Y.S.3d 181;Barril v. McClure,163 A.D.3d 752, 752–753, 81 N.Y.S.3d 181 ).

As a threshold matter, the defendant had no duty to warn the plaintiff against the readily observable hazards posed by an unfinished attic (seeMeyer v. Tyner,273 A.D.2d 364, 709 N.Y.S.2d 618;Johnson v. Summa,230 A.D.2d 633, 646 N.Y.S.2d 8;Zaffiris v. O'Loughlin,184 A.D.2d 696, 585 N.Y.S.2d 94 ).The plaintiff readily acknowledged, for instance, that he could "definitely not" step on the sheetrock.Thus, if the accident was the result of the plaintiff stepping outside of the areas where it appeared reasonably safe for him to walk, the defendant should bear no liability (seeMeyer v. Tyner,273 A.D.2d 364, 709 N.Y.S.2d 618;Johnson v. Summa,230 A.D.2d 633, 646 N.Y.S.2d 8;Zaffiris v. O'Loughlin,184 A.D.2d 696, 585 N.Y.S.2d 94 ).Conversely, if the plaintiff stepped on something that appeared reasonably safe to walk on but in fact was not, then the defendant could be held liable for such a latent hazard (seeGallardo v. Gilbert,153 A.D.3d 791, 59 N.Y.S.3d 801;Slomin v. Skaarland Constr. Corp.,207 A.D.2d 639, 615 N.Y.S.2d 941 ).

"[T]he issue of whether a hazard is latent or open and obvious is generally fact-specific and thus usually a jury question"( Tagle v. Jakob,97 N.Y.2d 165, 169, 737 N.Y.S.2d 331, 763 N.E.2d 107 ).However, in order to meet his prima facie burden of proof at trial, the plaintiff was required to submit sufficient evidence to enable the jury to decide this critical issue in a logical manner, based on the inferences to be drawn from the evidence, rather than through sheer speculation or guesswork (see generallyGrant v. Phenix Ins. Co. of Brooklyn,N.Y., 133 N.Y. 657;see alsoCastellano v. New York City Transit Auth.,38 A.D.3d 822, 823, 832 N.Y.S.2d 635 ).Here, the evidence showed that the main beams were part of the structure of the house, but the function of the smaller pieces of wood was never really made clear, except that the plaintiff offered that they may have been intended to hold the insulation in place.In fact, the jury heard next to nothing about the smaller piece of wood that allegedly caused the plaintiff to fall.There were no pictures of it, no testimony regarding its dimensions, no evidence as to whether such a smaller piece of wood would ordinarily be safe to walk on, no evidence as to whether the smaller piece of wood even appeared reasonably safe to walk on, and no evidence that the smaller piece of wood was in a rotted, deteriorated, or otherwise unsafe condition, other than the plaintiff's testimony that it looked "discolored" and "pretty damp."

Viewing the evidence in the light most favorable to the plaintiff, and affording him every favorable inference which may properly be drawn from the facts presented, there was simply no rational basis upon which the jury could determine, without speculating, that the smaller piece of wood that allegedly caused the plaintiff to fall constituted a latent hazard due to its alleged rotted condition (seeDodkowitz v. Nelson,22 A.D.3d 709, 803 N.Y.S.2d 131 ).Our colleagues in the dissent reach a different conclusion, based largely on the plaintiff's testimony, on redirect examination, that he had extensive experience walking on "joist beams."While it is true that the plaintiff and his counsel often—and confusingly—referred to the smaller pieces of wood as "joists," there was no evidence that the smaller pieces of wood were, in fact, part of the structure of the house.To the contrary, as mentioned earlier, the plaintiff himself offered that the purpose of the smaller pieces of wood was simply to hold the insulation in place, and when asked directly whether the smaller pieces of wood were intended to be walked on, the plaintiff said he didn't know.Our colleagues in the dissent also state that, prior to the accident, the plaintiff had spent 30 minutes in the attic walking on the smaller pieces of wood without incident, but again there is no clear record support for this statement.Whether the plaintiff had previously stepped on some of the smaller pieces of wood without incident prior to the accident is simply not known, because the plaintiff's counsel never asked him that question directly.Rather, counsel asked the plaintiff whether, in his 20 years of experience, he had ever walked on "joist beams," to which the plaintiff answered "[y]es,""[a]ll the time."But since there is no record evidence that the smaller...