Opinion
319456/03
Decided June 24, 2005.
Plaintiffs sued Defendant, a licensed plumber, for breach of contract for work performed on Plaintiffs' home. After trial, the jury returned a verdict in favor of Plaintiffs, and Defendant moved to set aside the verdict, asserting that the award was against the weight of the evidence and that Plaintiffs' witness perjured himself when he testified that he is a licensed contractor.
Section 4404(a) of the CPLR states that:
After a trial of a cause of action or issue triable of right by a jury, upon motion of any party or on its own initiative, the court may set aside a verdict of any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial or a cause of action or separable issue where the verdict is contrary to the weight of the evidence, in the interest of justice or where the jury cannot agree after being kept together for a long as is deemed reasonable by the court.
The gravamen of Defendant's motion is threefold:
1. The jury could not find in favor of Plaintiffs without expert testimony;
2. The Plaintiffs' witness perjured himself when he claimed to be a licensed contractor;
and
3. Plaintiffs have yet to pay the contractor witness for his services and therefore have suffered no legal damage because, not being licensed, the contractor could not recover his fee in a court of law.
Each of these arguments will be discussed in turn.
In his moving papers, Defendant states that the jury verdict is against the weight of the evidence as a matter of law. In this statement Defendant has combined two entwined but different legal principles.
In Nicastro v. Park et al., 113 AD2d 129, 494 N.Y.S. 2d 184 (2nd Dept. 1985), the court stated that determining whether a jury verdict is against the weight of the evidence is a discretionary and factual determination, whereas determining whether a jury verdict is supported by sufficient evidence is a question of law. The "weight of the evidence" denotes the amount and substance of the testimony and exhibits, whereas legally supported evidence involves legal evidentiary requirements necessary to meet a specific burden. For a court to conclude that a jury verdict is not supported by legally sufficient evidence, there must be no valid line of reasoning or permissible inferences which could possibly lead to the conclusions reached by the jury. Gannon v. All Car Movers, Ltd., et al., 2005 NY App. Div. Lexis 5587 (2nd Dept. 2005). Ordinarily, the courts are loathe to set aside a jury verdict unless the jury could not have reached the verdict on any fair interpretation of the evidence. Nicastro v. Park et al., op cit.
Defendant's argument is that the jury could not, as a matter of law, have found for Plaintiffs without expert testimony being offered on Plaintiffs' behalf. However, the necessity for expert testimony depends generally on whether the ordinary experiences of the fact finders provide sufficient bases for judging the adequacy of the services rendered. See generally Marcus Borg Rosenberg Diamond v. Gilbert, Segall Young, LLP et al., 2002 NY misc. Lexis 1953 (New York County 2002). Courts have held that expert testimony is not required to establish a prima facie case when the allegations rest on principles of breach of contract rather than negligence or professional malpractice. See generally Serhofer v. Groman Wolf, P.C., 203 AD2d 354, 610 NY2d 294 (2nd Dept. 1994).
In the instant case, Plaintiffs alleged that Defendant did not perform the work promised. Some of these alleged breaches involve attaching faucets on a proper place on a bathtub and reversing plumbing fixtures. These types of problems, under the concept of breach of contract, would generally be within the everyday experience of a jury, thereby negating the necessity of Plaintiffs producing a licensed plumber at trial. Additionally, juries are not required to accept expert testimony, and the weight to be accorded such testimony is a matter for the trier of fact. In re Estate of Sylvestri, 44 NY2d 260, 405 N.Y.S. 2d 424 (1978). It is noted that Defendant is a licensed plumber and the jury apparently chose not to believe his testimony.
Even for some of the other alleged breaches which are more technical in nature, such as incorrectly attaching plumbing and gas lines, experts are not necessarily required to assist a jury in reaching a verdict. Courts have upheld verdicts in favor of plaintiffs who do not call expert witnesses even in the face of expert testimony provided in favor of defendants. In Novak v. Corco Chemical Corp., 194 AD2d 652, 599 N.Y.S. 2d 130 (2nd Dept. 1993), the appellate court affirmed a jury verdict in favor of a plaintiff whose theory of liability rested on a manufacturing defect of a bottle of chloroform which she alleged exploded, causing her to fall. Although the plaintiff produced no expert witness, and the defendant did call an expert who testified that the bottle could not have exploded, the appellate court upheld the jury's verdict, finding that the plaintiff's proof was sufficient to warrant the inference that only a defect in the chloroform or its packaging could have caused the occurrence which resulted in the accident.
Based on the foregoing, the court concludes that the jury could reasonably have reached its decision, even without the testimony of an expert witness on Plaintiffs' behalf.
Defendant's second argument, that Plaintiffs' witness committed perjury, the court also finds insufficient to overturn the jury verdict. Although Defendant submitted an abstract from the Department of Consumer Affairs website that does not list Plaintiffs' witness as a licensed contractor, that document alone is insufficient for the court to conclude, without a hearing or other evidence, that the witness lied on the stand about his professional credentials. Without a judicial determination of perjury, this court cannot sua sponte conclude that Plaintiffs' witness either lied under oath or assume the effect of that alleged misstatement on the conclusions of the triers of fact.
Court have held that an otherwise qualified witness who is not licensed in the field may still give expert testimony, which the jury may believe or discard at its discretion. See generally, Fuller v. Preis, 35 NY2d 425, 363 N.Y.S. 2d 568 (1974), People v. Rice, 150 NY 400 (1899). Issues of credibility are for the jury, which has the opportunity to observe the witnesses and the evidence, and its resolution of these issues is entitled to deference, Bertelle v. New York City Transit Authority, et al., 2005 NY App. Div. Lexis 6096 (2nd Dept. 2005), and a successful party is entitled to a presumption that the jury adopted a reasonable view of the evidence. Id.
Defendant's final assertion, that Plaintiffs have not yet paid for the services billed and therefore have suffered no damage, the court also finds unavailing. Plaintiffs have contracted to pay for services rendered and have been billed for such work. Defendant's argument that the contractor is unlicensed and therefore may not recover payment in a court of law is a mere allegation of the contractor's status, not conclusive proof thereof. Also, Defendant has no standing to assert potential defenses available to Plaintiffs should they disavow the contractor's bill and eventually be sued by him.
A jury verdict should not be set aside as against the weight of the evidence unless the evidence so preponderates in favor of the moving party that the verdict could not have been reached on any fair interpretation of the evidence. Based on the foregoing, the court denies Defendant's post-trial motion under section 4404 of the CPLR.