Opinion
No. 44 SSM 41.
Decided January 9, 2007.
APPEAL from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered July 25, 2006. The Appellate Division, with two Justices dissenting, (1) reversed, on the law, a judgment of the Supreme Court, Queens County (Timothy J. Flaherty, J.), entered upon a jury verdict, which had found defendant and plaintiff each 50% at fault in the happening of an accident, and upon an order of that court (Timothy J. Flaherty, J.), which had denied defendant's motion, pursuant to CPLR 4404 (a) to set aside the verdict and for judgment as a matter of law dismissing the complaint, (2) granted that branch of the motion seeking to set aside the verdict and for judgment as a matter of law dismissing the complaint, (3) dismissed the complaint, and (4) modified the order accordingly.
Plaintiff commenced this negligence action seeking damages for injuries sustained when she fell down a subway staircase. Plaintiff claimed that while descending the staircase she slipped on a folded, grease-stained newspaper, which was the same newspaper that she had seen two days earlier, and that she did not step over the newspaper because she did not see it.
The majority at the Appellate Division concluded that a verdict should not be allowed to stand where it is based on testimony which is utterly incredible as a matter of law because it is manifestly untrue, physically impossible or contrary to common experience; that it was incredible that plaintiff, who did not see any newspaper before she fell, nonetheless had observed the same newspaper two days earlier; that being unable to distinguish to any significant degree the paper which caused her fall, plaintiff had the keen powers of observation to note that the paper two days earlier was folded and had a grease stain; and that after two days of pedestrian traffic the same newspaper would remain virtually undisturbed.
Cruz v New York City Tr. Auth., 31 AD3d 688, affirmed.
Ephrem J. Wertenteil, New York City, for appellant.
Wallace D. Gossett, Brooklyn, and Anita Isola for respondent.
Before: Concur: Chief Judge KAYE and Judges CIPARICK, GRAFFEO, READ, SMITH and PIGOTT.
OPINION OF THE COURT
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed, with costs, for the reasons stated in the memorandum by the Appellate Division ( 31 AD3d 688).