Wittorf v. the City of N.Y.

• Decision Date: 15 August 2011
• Citation: 2011 N.Y. Slip Op. 21291,928 N.Y.S.2d 842,33 Misc.3d 368
• Parties: Rhonda WITTORF, Plaintiff,v.The CITY OF NEW YORK, Defendant.
• Court: New York Supreme Court

33 Misc.3d 368

928 N.Y.S.2d 842

2011 N.Y. Slip Op. 21291

Rhonda WITTORF, Plaintiff,

v.The CITY OF NEW YORK, Defendant.

Supreme Court, New York County, New York.

Aug. 15, 2011.

Dansker & Aspromonte Associates by Paul Dansker, Esq., New York City, for the Plaintiff.Michael A. Cardozo, Esq., Corporation Counsel of City of New York by Jessica Giambrone, Esq. & Ashley Hale, Esq., New York City, for the Defendant.PAUL G. FEINMAN, J.

Following a jury trial in this personal injury action, plaintiff was awarded damages for past and future pain and suffering and past and future medical expenses. Defendant City of New York has moved pursuant to CPLR 4404(a) for an order setting aside the jury verdict on the ground that plaintiff failed to establish a prima facie case, and entering judgment in favor of the City as a matter of law. Alternatively, the City seeks to set aside the future medical expenses portion of the verdict on the ground that the award was against the weight of the evidence.¹

After the jury rendered its verdict, plaintiff's counsel moved on the record to have the court set aside the jury's finding of allocation of fault as between the defendant and herself. She also moved for additur. The court denied plaintiff's motion on the record at the time of the verdict, and she now cross-moves for leave to reargue both branches of her oral post-trial motion. Alternatively, plaintiff seeks an order granting a new trial on liability and damages.

By interim decision and order dated March 8, 2011, this court directed the parties to provide the entire trial transcript, and held the motion and cross motion in abeyance. The transcripts have now been provided. After review of the papers and transcripts in their entirety, the City's motion to set aside the jury verdict on the ground that plaintiff failed to establish a prima facie case, and entering judgment in favor of the City as a matter of law is granted. The alternative branch of its motion is denied as academic. Plaintiff's cross motion is denied in its entirety.

The Trial Testimony

Plaintiff was badly injured on November 5, 2005, when she rode her bicycle into a large pothole while biking under an overpass on the eastbound 65th Street transverse which cuts through Central Park. She and her then-boyfriend Brian Hoberman had been given permission to use the transverse by an individual who was later determined to be a New York City Department of Transportation (DOT) employee who was setting up a barricade to block vehicular traffic on that roadway prior to repairing the road. The verified complaint alleges that defendant City owns and maintains the transverse and was under a duty to keep it safe and in good condition, and although it had received prior written notice of the street's dangerous condition, it had failed to timely remedy the defect (Doc. 2 [Ver. Compl. ¶¶ 2–12] ).²

Plaintiff testified that on the morning of November 5, 2005, the day before the annual New York City Marathon, she and Hoberman were riding their bikes to join others for a bike ride commencing on the east side of Manhattan (Doc. 42 [Tr. Transcr., Wittorf Testimony 770] ). Along Central Park West were blue police barricades set up for the marathon, and the 96th Street entrance to the park was closed for the marathon (Wittorf Testimony 772). They then rode down to the 65th Street transverse where “guys were putting up cones.” ( Id.). Plaintiff had never crossed the 65th Street transverse on her bike because of the heavy traffic (Wittorf Testimony 829). On his bike, Hoberman approached the worker “with the cones and asked him if we could go through, and he said sure, go ahead.” ( Id.). It was her understanding that “it was okay to go,” and that there “was no reason to think there was anything wrong.” (Wittorf Testimony 773). The two proceeded to ride on the transverse, Hoberman in front of plaintiff and to her right, and there were no warning signs or anything to suggest any danger (Wittorf Testimony 773–774). There were no workers or trucks or equipment in the view ahead of her (Wittorf Testimony 774). She was traveling in the eastbound lane (Wittorf Testimony 775). At the area of the second overpass, the sun was in her eyes, but she was able to see a big hole in the pavement ahead of her, and she moved to the left, and then rode into a bigger hole, where she suffered injury (Wittorf Testimony 774–775).

Hoberman testified that as they rode down Central Park West, he saw “a worker putting out cones who looked like he was in the process of closing the roadway,” and thought it “would be a good opportunity to go through the transverse without vehicles ... to get to the east side” (Doc. 40 [Tr. Transcr., Hoberman Testimony 519] ). He had never ridden his bike on the transverse before (Doc. 40 Hoberman Testimony 518). He rode toward the worker and asked if it was okay if they rode through (Doc. 40 Hoberman Testimony 521). The worker said “it's okay to go through.” (Doc. 40 Hoberman Testimony 522). The worker said nothing else (Doc. 42 Hoberman Testimony 734–735). Hoberman understood that this meant it was safe for them to ride through, and he assumed that the rode closing was based on preparations for the marathon (Doc. 40 Hoberman Testimony 522–523; Doc. 42 Hoberman Testimony 753). He rode his bike in about the center of the eastbound lane (Doc. 40 Hoberman Testimony 529, 531). As he rode under the first overpass he saw nothing unusual on the roadway, and saw no vehicles traveling ahead of him or on the other side of the roadway traveling west (Doc. 40 Hoberman Testimony 525–527). The second overpass was “a good distance away from the first,” and was “maybe two thirds of the way through the park” (Doc. 40 Hoberman Testimony 524). As he neared the second overpass, the roadway appeared fine (Doc. 40 Hoberman Testimony 528). He could only see the light on the other end of the tunnel and could not see the roadway surface underneath the tunnel, because of the contrast between the sun outside and the darkness of the tunnel itself (Doc. 40 Hoberman Testimony 529–530). He rode through the tunnel without incident, and saw nothing to concern him (Doc. 40 Hoberman Testimony 530). However, after he had ridden through, a jogger in the opposite direction yelled out that Wittorf behind him had crashed (Doc. 40 Hoberman Testimony 531). He then rode back; he observed that the area of road where plaintiff crashed was located “towards the center of the roadway, near the yellow line,” had two very large and deep holes, one a bit closer to the right center of the road, and the one into which she crashed located in the center of the roadway (Doc. 40 Hoberman Testimony 532). He saw initially the jogger and maybe one worker helping plaintiff, and later three or four workers also came over, and someone called 911 (Doc. 40 Hoberman Testimony 533; Doc. 42 Hoberman Testimony 739–740, 750–751). After this accident he saw a City vehicle approaching from the east, driving west (Doc. 40 Hoberman Testimony 525–526). He did not see any construction equipment or pile of hot asphalt (Doc. 42 Hoberman Testimony 740).

Parts of the pre-trial deposition testimony taken on October 26, 2007, of DOT crew supervisor Donald Bowles were read at trial (Doc. 40 [Trial Tr. Bowles EBT pp. 447–460], Doc. 41 [Trial Tr. Bowles EBT pp. 680–717] ). According to Bowles' testimony, he supervised the milling and resurfacing work of streets in New York County and sometimes supervised pothole crews (Doc. 40 Bowles EBT 450). On November 5, 2005, he and his crew had been sent to “do a special condition that was reported on the 65th Street Transverse,” a street that supports two-way traffic (Doc. 40 Bowles EBT 451, 459). A “special condition” is a project involving a defect “bigger than a pothole” but less involved than road resurfacing (Doc. 40 Bowles EBT 452). The report indicated the condition was in the eastbound lane, but according to Bowles, there was nothing wrong with the eastbound lane, and the work they did on that day was in the westbound lane (Doc. 40 Bowles EBT 454). Ultimately, the work done that day encompassed 16.4 square yards of repair in one continuous area (Doc. 41 Bowles EBT 693–694, 696). Bowles conceded that in fixing the condition, the workers may have opened some of the street on the eastbound side, but stated that the existing condition was entirely within the westbound lane (Doc. 41 Bowles EBT p. 711).

The work day began at 7:00 a.m. (Doc. 41 Bowles EBT p. 682). He and some of his crew drove onto the transverse, entering on the east side at Fifth Avenue, to find the condition at issue (Doc. 41 Bowles EBT 684). When they entered, they closed off the westbound lane to traffic with cones (Doc. 41 Bowles EBT 685). They drove until they found the condition under the overpass; when the saw the condition, Bowles and one of his crew then drove in their safety truck to the west side of the transverse to close the street (Doc. 41 Bowles EBT 685). Based on seeing the condition of the road, Bowles determined what equipment would be needed to do the work, namely a pickup truck, a debris truck, and probably a small dump truck with a “hot box” to keep asphalt hot (Doc. 41 Bowles EBT 683–684).

Upon reaching the west side of the 65th Street transverse, he and his crew member found a police barricade to close off the eastbound entrance, thus in effect closing the street to vehicular traffic in both directions (Doc. 41 Bowles EBT 686, 700). As Bowles and the other worker were setting up the barricade, two bicyclists approached and asked if they could still go through (Doc. 41 Bowles EBT 698, 699). “I said sure,” Bowles testified, because the workers had not yet completed setting up (Doc. 41 Bowles EBT 698).³ Neither Bowles nor the other DOT worker observed the bicyclists ride away as they were “busy setting” up the street closure (Doc. 41 Bowles EBT 700).

After they finished setting up the barricade, Bowles and the other...