Opinion
2012-11-13
Eric CHARLESTON, Plaintiff–Appellant, v. The CITY OF NEW YORK, et al., Defendants–Respondents.
Morton Povman, P.C., Forest Hills (Bruce Povman of counsel), for appellant.
, J.P., ANDRIAS, RENWICK, DeGRASSE, RICHTER, JJ.
Judgment, Supreme Court, New York County (Barbara Jaffe, J.), entered January 13, 2012, awarding plaintiff the principal sum of $44,000 based upon a jury verdict finding plaintiff 60% liable and defendant Sutton Place Restaurant & Bar, Inc. 40% liable, unanimously affirmed, without costs.
The verdict finding plaintiff 60% liable in this action for personal injuries sustained during an altercation with employees at defendant bar and with police officers was based upon a fair interpretation of the evidence ( see e.g. McDermott v. Coffee Beanery, Ltd., 9 A.D.3d 195, 206, 777 N.Y.S.2d 103 [1st Dept. 2004] ). Two police officers testified that plaintiff was intoxicated at the time of the incident, and that he and another individual tried to push past defendant bar's security personnel and re-enter the bar. Although the jury found defendant bar partially liable, it does not follow that the jury rejected the officers' testimony in its entirety, as the jury was free to accept some parts of their testimony and not others ( see Santos–Lopez v. Metropolitan Tr. Auth., 85 A.D.3d 512, 513, 925 N.Y.S.2d 57 [1st Dept. 2011] ). Nor was the jury obligated to accept plaintiff's version of the events, particularly where portions of his testimony were somewhat contradictory.
Plaintiff's argument that the jury should not have been provided with a charge on comparative negligence in the first instance, is unavailing. Comparative negligence is usually a jury question and should only be decided as a matter of law where there is “no valid line of reasoning and permissible inferences” which could lead a rational jury to conclude that the plaintiff was negligent ( Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145 [1978];see Nallan v. Helmsley–Spear, Inc., 50 N.Y.2d 507, 516–517, 429 N.Y.S.2d 606, 407 N.E.2d 451 [1980];Johnson v. New York City Tr. Auth., 88 A.D.3d 321, 324, 929 N.Y.S.2d 215 [1st Dept. 2011] ). Here, the evidence, including that of plaintiff's intoxication at the time of the incident, supported the court's decision to provide the comparative negligence charge ( see Kelleher v. F.M.E. Auto Leasing Corp., 192 A.D.2d 581, 584, 596 N.Y.S.2d 136 [2d Dept. 1993];see also Hazel v. Nika, 40 A.D.3d 430, 431, 836 N.Y.S.2d 573 [1st Dept. 2007] ).
We have considered plaintiff's remaining arguments and find them unavailing.