Opinion
570069/04.
Decided June 30, 2005.
Defendants/third-party plaintiffs appeal from an order of the Civil Court of the City of New York, Bronx County, entered July 19, 2002, (Wilma Guzman, J.) which granted third-party defendant's motion to set aside the jury's 25% apportionment as against it.
PRESENT: HON. WILLIAM P. McCOOE, J.P., HON. WILLIAM J. DAVIS, HON. MARTIN SCHOENFELD, Justices.
Order entered on or about July 19, 2002, (Wilma Guzman, J.) reversed, with $10 costs, motion denied and the verdict reinstated.
The trial evidence showed that plaintiff, employed as a clerk by third-party defendant New York Hospital ("NYH"), was moving a 200 hundred pound file cabinet on a dolly when the wheel struck a "hole" in the hallway of a building premises owned and/or managed by defendants. Since the cabinet was not secured to the dolly and no straps or other safety devices were provided to prevent shifting during transport, the cabinet "flipped off" and landed on plaintiff, resulting in personal injuries. At trial, defendants/third-party plaintiffs alleged numerous theories of liability as against NYH, including the failure to train or instruct plaintiff in the unusual and non-routine task of moving the file cabinet which was unrelated to his normal work as well as respondeat superior based upon the conduct of plaintiff's co-employee in negligently pushing the cabinet (which measured six feet in height) "too fast" and with restricted "visibility". Despite charging the jury on these theories, the trial court set aside the jury verdict finding NYH 25% liable for the accident on the ground that no duty to train was owed to plaintiff.
We reverse. There existed a "valid line of reasoning and permissible inferences" which could permit a rational jury to reach their conclusion based on the evidence presented ( Cohen v. Hallmark Cards 45 NY2d 493, 499). The evidence, fairly interpreted, permitted the jury's finding that NYH was partially responsible for the accident based upon either a failure to train theory ( see Shubert v. Bennett 201 AD2d 285) or the negligence of the co-employee ( see Riviello v. Waldron 47 NY2d 297).
Any question as to whether the trial proof was sufficient to support each of the alternative theories submitted to the jury is unpreserved for appellate review inasmuch as NYH failed to register an appropriate objection to a general verdict when the two separate theories of liability were submitted ( see Williams v. City of New York 240 AD2d 734; Kahl v. Loffredo 221 AD2d 679).
This constitutes the decision and order of the court.