Opinion
02-22-2017
Brenda PERRY, respondent, v. KONE, INC., appellant.
Costello, Shea & Gaffney LLP, New York, NY (Frederick N. Gaffney and Alan T. Blutman of counsel), for appellant. Asta & Associates, P.C., New York, NY (Lawrence B. Goodman of counsel), for respondent.
Costello, Shea & Gaffney LLP, New York, NY (Frederick N. Gaffney and Alan T. Blutman of counsel), for appellant.
Asta & Associates, P.C., New York, NY (Lawrence B. Goodman of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., SANDRA L. SGROI, HECTOR D. LaSALLE, and BETSY BARROS, JJ.
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Baynes, J.), dated February 10, 2015, which denied its motion, denominated as one for leave to renew, but which was, in actuality, one for leave to reargue its prior motion pursuant to CPLR 4401 for judgment as a matter of law made at the close of the plaintiff's case on the issue of liability, and, in the alternative, pursuant to CPLR 4404(a) to set aside a jury verdict in favor of the plaintiff and against it on the issue of liability and for judgment as a matter of law or, in the alternative, to set aside the verdict as contrary to the weight of the evidence or in the interest of justice and for a new trial.
ORDERED that the appeal from so much of the order as denied that branch of the defendant's motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,
ORDERED that the order is reversed insofar as reviewed, on the law, that branch of the defendant's motion which was pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of liability in the interest of justice and for a new trial is granted, and the matter is remitted to the Supreme Court, Kings County, for a new trial on the issue of liability; and it is further,
ORDERED that one bill of costs is awarded to the defendant.
The plaintiff allegedly was injured when an elevator she was riding at a post office misleveled by two or three inches and she fell while attempting to exit. The plaintiff thereafter commenced this action to recover damages for personal injuries against the defendant, which had a full service contract with the post office to maintain and repair the subject elevator. At the ensuing jury trial on the issue of liability, the plaintiff relied upon the doctrine of res ipsa loquitur. Following the close of the plaintiff's case, the defendant moved pursuant to CPLR 4401 for judgment as a matter of law on the ground that the plaintiff failed to establish a prima facie case of negligence. The Supreme Court, in effect, denied the motion, and the jury returned a verdict in the plaintiff's favor. The defendant then submitted a motion denominated as one for leave to renew its CPLR 4401 motion. Alternatively, the defendant moved pursuant to CPLR 4404(a) to set aside the verdict as not supported by legally sufficient evidence, as contrary to the weight of the evidence, or in the interest of justice. In an order dated February 10, 2015, the court denied the motion, and the defendant appeals from that order.
That branch of the defendant's motion which was denominated as one for leave to renew its prior CPLR 4401 motion was, in actuality, one for leave to reargue because it was not based on new facts (see CPLR 2221[d][2] ; [e] [2]; Humsted v. New York City Health & Hosps. Corp., 142 A.D.3d 1139, 1140, 37 N.Y.S.3d 899 ; Kozak v. Deb Deb, LLC, 65 A.D.3d 616, 617, 883 N.Y.S.2d 729 ). Since an order denying a motion for leave to reargue is not appealable, the appeal from so much of the order as denied that branch of the defendant's motion must be dismissed (see Humsted v. New York City Health & Hosps. Corp., 142 A.D.3d at 1140, 37 N.Y.S.3d 899; Kozak v. Deb Deb, LLC, 65 A.D.3d at 617, 883 N.Y.S.2d 729 ).
" ‘A motion for judgment as a matter of law pursuant to CPLR ... 4404 may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nonmoving party’ "(Messina v. Staten Is. Univ. Hosp., 121 A.D.3d 867, 867, 994 N.Y.S.2d 644, quoting Tapia v. Dattco,
Inc., 32 A.D.3d 842, 844, 821 N.Y.S.2d 124 ; see Szczerbiak v. Pilat, 90 N.Y.2d 553, 556, 664 N.Y.S.2d 252, 686 N.E.2d 1346 ). "In considering such a motion, the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant" (Messina v. Staten Is. Univ. Hosp., 121 A.D.3d at 868, 994 N.Y.S.2d 644 [internal quotation marks omitted]; see Szczerbiak v. Pilat, 90 N.Y.2d at 556, 664 N.Y.S.2d 252, 686 N.E.2d 1346 ). Here, there was a rational process by which the jury could have found in favor of the plaintiff. Contrary to the defendant's contention, to establish the defendant's liability on the basis of res ipsa loquitor, the plaintiff was not required to demonstrate that a prior incident had occurred during which the subject elevator misleveled (see Devito v. Centennial El. Indus., Inc., 90 A.D.3d 595, 596, 933 N.Y.S.2d 871 ; Garrido v. International Bus. Mach. Corp. [IBM], 38 A.D.3d 594, 596, 832 N.Y.S.2d 71 ; Carrasco v. Millar El. Indus., 305 A.D.2d 353, 354, 758 N.Y.S.2d 679 ).
Contrary to the defendant's further contention, there was sufficient evidence to support the Supreme Court delivering a res ipsa loquitur charge to the jury (see Ramos v. Noveau Indus., Inc., 29 A.D.3d 555, 557, 814 N.Y.S.2d 251 ; see generally Garrido v. International Bus. Mach. Corp. [IBM], 38 A.D.3d at 596, 832 N.Y.S.2d 71 ). In contrast, there was no reasonable view of the facts adduced at trial that could support the conclusion that the plaintiff was at fault to some degree in the happening of the accident, such that the court properly declined to charge the jury on comparative negligence (see Pilgrim v. Wilson Flat, Inc., 110 A.D.3d 973, 974, 973 N.Y.S.2d 738 ; Marus v. Village Med., 51 A.D.3d 879, 881, 858 N.Y.S.2d 735 ). Since the defendant failed to demonstrate that an eyewitness to the accident was under the plaintiff's control, a missing witness charge as to that witness also was not warranted (see Lacqua v. Silich, 141 A.D.3d 690, 691, 35 N.Y.S.3d 488 ; Pope v. 818 Jeffco Corp., 74 A.D.3d 1163, 1164, 904 N.Y.S.2d 149 ).
The Supreme Court did not err in permitting the plaintiff's expert to testify to his opinion, which was based on records admitted into evidence (see Adkins v. Queens Van–Plan, 293 A.D.2d 503, 504, 740 N.Y.S.2d 389 ). Further, the court did not improvidently exercise its discretion in precluding the defendant from cross-examining the expert regarding his opinions in unrelated cases (see Grasso v. Koslowe, 38 A.D.3d 599, 830 N.Y.S.2d 671 ; Prendergast v. Patel, 301 A.D.2d 508, 509, 753 N.Y.S.2d 382 ).
However, a new trial is required due to the Supreme Court's error in excluding a witness from the courtroom and in prohibiting the witness from communicating with defense counsel during the trial as to any matter. The witness at issue was an employee of the defendant and the representative it had designated to assist in the defense of this action. Under these circumstances, and in the absence of extenuating circumstances, the witness was entitled to remain in the courtroom throughout the trial (see Yellow Book of N.Y., L.P. v. Cataldo, 81 A.D.3d 638, 639, 917 N.Y.S.2d 215 ; American Print. Converters v. JES Label & Tape, 103 A.D.2d 787, 477 N.Y.S.2d 660 ; Carlisle v. County of Nassau, 64 A.D.2d 15, 18–19, 408 N.Y.S.2d 114 ). Further, the court's decision to prohibit defense counsel from communicating at all with the witness, who was knowledgable about the technical aspects of elevator mechanics and maintenance that were the subject of the testimony of the plaintiff's expert, compromised the defendant's ability to assist in and present its defense (see People v. Santana, 80 N.Y.2d 92, 99, 587 N.Y.S.2d 570, 600 N.E.2d 201 ; Carlisle v. County of Nassau, 64 A.D.2d at 20, 408 N.Y.S.2d 114 ). Accordingly, a new trial should have been granted in the interest of justice (see CPLR 4404[a] ).
Since we are granting a new trial, we note that, although the Supreme Court did not improvidently exercise its discretion in precluding the defendant from presenting the testimony of a witness whose identity the defendant failed to disclose until the first day of trial (see Crawford v. Village of Millbrook, 94 A.D.3d 1036, 1037, 943 N.Y.S.2d 180 ; Wolodkowicz v. Seewell Corp., 61 A.D.3d 676, 677, 876 N.Y.S.2d 487 ), there is no reason to preclude the witness's testimony at the new trial as the plaintiff can no longer claim either surprise or lack of opportunity to prepare a responsive defense (see Wolodkowicz v. Seewell Corp., 61 A.D.3d at 677, 876 N.Y.S.2d 487 ; Kavanaugh v. Kuchner, 243 A.D.2d 445, 446, 665 N.Y.S.2d 279 ).
In light of our determination, we need not reach the defendant's remaining contention.