Opinion
16369 109263/08.
12-10-2015
Pamela BLECHMAN, Plaintiff–Respondent, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant–Appellant.
Lawrence Heisler, Brooklyn (Timothy J. O'Shaughnessy of counsel), for appellant. Barasch McGarry Salzman & Penson, New York (Dominique Penson of counsel), for respondent.
Lawrence Heisler, Brooklyn (Timothy J. O'Shaughnessy of counsel), for appellant.
Barasch McGarry Salzman & Penson, New York (Dominique Penson of counsel), for respondent.
Opinion
Judgment, Supreme Court, New York County (Ellen M. Coin, J.), entered April 11, 2014, upon a jury verdict, awarding plaintiff the aggregate amount of $356,458.01, unanimously affirmed, without costs.
Defendant's argument that the jury's finding that plaintiff was negligent but that her negligence was not a proximate cause of her injury was inconsistent was not raised before the jury was discharged, and therefore is unpreserved (see Barry v. Manglass, 55 N.Y.2d 803, 806, 447 N.Y.S.2d 423, 432 N.E.2d 125 1981 ). In any event, the issues were not so inextricably interwoven as to make it logically impossible to find negligence but not proximate cause (see Bracker v. New York City Tr. Auth., 112 A.D.3d 520, 977 N.Y.S.2d 234 1st Dept.2013 ).
Nor was the verdict against the weight of the evidence in light of the testimony of plaintiff, another passenger, and plaintiff's expert, that the gap between the train and the platform was a foot wide due to the train operator missing the 10–car marker (see Mazariegos v. New York City Tr. Auth., 230 A.D.2d 608, 645 N.Y.S.2d 802 1st Dept.1996 ).
Under the circumstances, the amount awarded plaintiff does not deviate materially from what would be reasonable compensation (see CPLR 5501[c] ). As a result of the accident, plaintiff sustained a broken ankle, and underwent two surgeries, an open reduction with internal fixation to repair the comminuted ankle fracture, and later, the removal of the hardware (see e.g. Hopkins v. New York City Tr. Auth., 82 A.D.3d 446, 917 N.Y.S.2d 866 1st Dept.2011 Rydell v. Pan Am. Equities, 262 A.D.2d 213, 692 N.Y.S.2d 333 1st Dept.1999; Fishbane v. Chelsea Hall, LLC, 65 A.D.3d 1079, 885 N.Y.S.2d 718 2d Dept.2009 ).
We have considered defendant's remaining arguments and find them unavailing.