Opinion
2017-10745 Index 101454/13
09-29-2021
Blanche Aponte, et al., respondents, v. New York City Housing Authority, appellant.
Herzfeld & Rubin, P.C., New York, NY (Miriam Skolnik and Sharyn Rootenberg of counsel), for appellant. Kuharski, Levitz & Giovinazzo, Staten Island, NY (Lonny R. Levitz of counsel), for respondents.
Herzfeld & Rubin, P.C., New York, NY (Miriam Skolnik and Sharyn Rootenberg of counsel), for appellant.
Kuharski, Levitz & Giovinazzo, Staten Island, NY (Lonny R. Levitz of counsel), for respondents.
REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, COLLEEN D. DUFFY, BETSY BARROS, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for personal injuries, etc., the defendant appeals from a judgment of the Supreme Court, Richmond County (Philip S. Straniere, J.), entered September 22, 2017. The judgment, upon an order of the same court dated October 13, 2016, granting the plaintiffs' motion pursuant to CPLR 4401 for judgment as a matter of law on the issue of liability, and upon a jury verdict on the issue of damages, among other things, awarding damages to each of the plaintiffs, is in favor of the plaintiffs and against the defendant in the principal sum of $204,000, with interest at the rate of 9% per annum.
ORDERED that the judgment is reversed, on the law, with costs, the plaintiffs' motion pursuant to CPLR 4401 for judgment as a matter of law on the issue of liability is denied, the order is modified accordingly, and the matter is remitted to the Supreme Court, Richmond County, for further proceedings in accordance herewith.
In 2013, the plaintiffs, apartment residents in a housing development owned by the defendant, New York City Housing Authority (hereinafter NYCHA), commenced this action against NYCHA to recover damages for personal injuries they alleged they sustained from prolonged bedbug infestation of their apartment. The plaintiffs alleged that NYCHA's negligence in failing to undertake appropriate exterminating measures caused their injuries. NYCHA answered, asserting, inter alia, a defense of comparative negligence.
In September 2016, a jury trial was held, during which each plaintiff testified, as did an exterminator employed by NYCHA and the former and current property managers of the building at issue. The parties each also presented expert testimony. Documentary evidence was also introduced, including numerous work orders related to NYCHA's treatment of the plaintiffs' apartment for bedbugs.
At the close of evidence, in an order dated October 13, 2016, the Supreme Court granted the plaintiffs' motion pursuant to CPLR 4401 for judgment as a matter of law on the issue of liability. The court directed the jury to "decide only the question of damages," on the ground that "the question of liability has already been decided." The court further instructed the jury that it "previously determined that [NYCHA] was negligent in failing to eradicate the bedbugs from the Plaintiffs' apartment," and the jury "will only have to decide if the Plaintiffs were negligent as well," and "whether the Plaintiff[s'] conduct contributed to causing the incident." The court further instructed, with respect to the third question on the verdict sheet regarding apportionment of fault to NYCHA, that "the Court has found [NYCHA], responsible as a matter of law, [so] you must assign some percentage [of fault] to it."
The jury returned a verdict awarding the plaintiffs damages for past pain and suffering and apportioning fault. A judgment was entered on September 22, 2017, in favor of the plaintiffs and against NYCHA in the principal sum of $204,000, with interest at the rate of 9% per annum from the date of the verdict. NYCHA appeals.
A landowner "owes a duty of care to maintain his or her property in a reasonably safe condition" (Gronski v County of Monroe, 18 N.Y.3d 374, 379; see Boudreau-Grillo v Ramirez, 74 A.D.3d 1265, 1267). The adequacy of a defendant landlord's efforts to discharge its duty to remedy a hazardous condition "is to be governed by a standard of reasonableness" (Juarez v Wavecrest Mgmt. Team, 88 N.Y.2d 628, 645). Evidence of industry custom and practice is relevant, but not conclusive, to the question of whether the defendant's conduct was reasonable (see Trimarco v Klein, 56 N.Y.2d 98, 106-107).
A motion pursuant to CPLR 4401 should not be granted unless, affording the party opposing the motion every inference which may properly be drawn from the facts presented, and viewing the evidence in the light most favorable to the nonmovant, there is no rational process by which the jury could find for the nonmovant against the moving party (see Szczerbiak v Pilat, 90 N.Y.2d 553, 556; Bzezi v Eldib, 112 A.D.3d 772, 774). A court considering a motion for a directed verdict "must not 'engage in a weighing of the evidence,' nor may it direct a verdict where 'the facts are in dispute, or where different inferences may be drawn or the credibility of witnesses is in question'" (Bzezi v Eldib, 112 A.D.3d at 774, quoting Dolitsky v Bay Isle Oil Co., 111 A.D.2d 366, 366).
Here, the evidence adduced at trial, viewed in the light most favorable to NYCHA, did not establish that there is no rational process by which the jury could find in favor of NYCHA (see Szczerbiak v Pilat, 90 N.Y.2d at 556). The evidence included the plaintiffs' testimony, as well as the parties' competing expert testimony regarding the appropriate protocols for the treatment of a bedbug infestation and competing conclusions by the expert witnesses as to whether NYCHA's bedbug eradication efforts were appropriate. Although a landlord's violation of a municipal ordinance, including, as relevant here, Administrative Code of the City of New York §§ 27-2017 and 27-2018, may constitute some evidence of negligence for the jury to take into account, it does not constitute negligence per se (see Elliott v City of New York, 95 N.Y.2d 730, 734-735; Major v Waverly & Ogden, 7 N.Y.2d 332, 336).
As the trial evidence did not establish that there was "no rational process by which the jury could base a finding" (Creutzberger v County of Suffolk, 180 A.D.3d 991, 993) that NYCHA was not negligent, or that NYCHA's negligence was not a substantial factor in the happening of the complained-of incident, the plaintiffs' motion pursuant to CPLR 4401 for judgment as a matter of law on the issue of liability should have been denied (see Creutzberger v County of Suffolk, 180 A.D.3d at 993). Contrary to the plaintiffs' contention, the record does not support their assertion that the Supreme Court's error did not prejudice a "substantial right" of NYCHA (CPLR 2002), or that the jury's verdict "would have been the same" if not for the error (Rosenberg v Jing Jiang, 153 A.D.3d 744, 745).
Accordingly, we reverse the judgment and remit the matter to the Supreme Court, Richmond County, for a new trial on the issue of liability and, thereafter, if warranted, a trial on the issue of damages.
In light of the foregoing, we need not reach NYCHA's remaining contention.
RIVERA, J.P., AUSTIN, DUFFY and BARROS, JJ., concur.