It further argued that the jury's finding of liability under section 27-127 was unsustainable because the evidentiary basis for the jury's finding was the City's noncompliance with the inapplicable section 27-375 (f). Supreme Court denied the motion, holding that the City should have pleaded as an "affirmative defense" the inapplicability of section 27-375 (f) ( 2006 NY Slip Op 30626[U], *3 [2006]). The Appellate Division, with one Justice dissenting, modified the jury's damages award to the extent of ordering plaintiff to stipulate to a reduction thereof or face a new trial on that issue ( 63 AD3d 5, 12 [2d Dept 2009]).