Opinion
No. 2023-646 K C
11-03-2023
Shaline Persaud, Respondent, v. New York City Transit Authority, Appellant.
Deputy General Counsel, NYC Transit Authority (Timothy J. O'Shaughnessy and Yolanda Ayala of counsel), for appellant. Pollack, Pollack, Isaac & DeCicco, LLP (Brian J. Isaac, Jillian Rosen and Kenneth J. Gorman of counsel), for respondent.
Deputy General Counsel, NYC Transit Authority (Timothy J. O'Shaughnessy and Yolanda Ayala of counsel), for appellant.
Pollack, Pollack, Isaac & DeCicco, LLP (Brian J. Isaac, Jillian Rosen and Kenneth J. Gorman of counsel), for respondent.
PRESENT:: CHEREÉ A. BUGGS, J.P., MARINA CORA MUNDY, PHILLIP HOM, JJ
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered November 19, 2021. The judgment, upon jury verdicts on the issue of liability in favor of plaintiff and on the issue of damages awarding plaintiff the principal sums of $700,000 for past pain and suffering, and $1,100,000 for future pain and suffering, and, upon an order of that court dated September 10, 2020 (1) denying the branch of defendant's motion pursuant to CPLR 4404 (a) seeking to set aside the jury verdict on the issue of liability and for judgment as a matter of law, or, in the alternative, to set aside the jury verdict on the issue of liability as contrary to the weight of the evidence and for a new trial on the issue of liability, and (2) conditionally granting the branch of defendant's motion seeking to set aside the jury verdict on the issue of damages as excessive and for a new trial on the issue of damages, unless plaintiff stipulated to both reduce the award of damages for past pain and suffering to the principal sum of $400,000, and reduce the award of damages for future pain and suffering to the principal sum of $300,000, awarded plaintiff the principal sum of $700,000.
ORDERED that the judgment is reversed, without costs, the order dated September 10, 2020 is vacated, the branch of defendant's motion pursuant to CPLR 4404 (a) seeking to set aside the jury verdict on the issue of liability and for judgment as a matter of law is granted, and the complaint is dismissed.
Plaintiff commenced this action to recover for personal injuries sustained on January 28, 2015, after a snowstorm, when she slipped and fell on a wet floor in the mezzanine area of a subway station. At a jury trial, plaintiff's counsel did not call any witnesses employed by defendant; counsel merely read from the depositions of the cleaner who reported to work at 7:00 a.m. after plaintiff's accident, and the token booth agent who reported to work at 6:00 a.m. that morning. Plaintiff testified that the snow had stopped falling at around midnight, and that she fell at 6:00 a.m., during the morning rush hour, when the streets and sidewalks were wet from snow. Photographs and a video were admitted into evidence illustrating the wet, slushy and muddy condition of the floor shortly after plaintiff's accident. During its case, defendant called a cleaner who testified that she cleaned the mezzanine floor between 2:05 and 3:00 a.m. on January 28, 2015, and that the floor was dry when she left the station at 3:00 a.m.
After the jury returned a verdict in favor of plaintiff on the issue of liability, a trial on the issue of damages was held. The jury returned a verdict awarding plaintiff $700,000 for past pain and suffering, and $1,100,000 for future pain and suffering. After the trial, defendant moved, pursuant to CPLR 4404 (a), to set aside the jury verdict on the issue of liability and for judgment as a matter of law, or, in the alternative, to set aside that jury verdict as contrary to the weight of the evidence and order a new trial, or, in the alternative, to set aside the jury verdict on the issue of damages as excessive. The court denied the branch of defendant's motion seeking to set aside the jury verdict on the issue of liability, but granted the branch of the motion seeking to set aside the jury verdict on the issue of damages and ordered a new trial thereon, unless plaintiff stipulated to reduce the awards to $400,000 for past pain and suffering, and $300,000 for future pain and suffering. On November 19, 2021, the Civil Court entered a judgment awarding plaintiff the principal sum of $700,000.
"[A] defendant may be held liable for an injury proximately caused by a dangerous condition created by water, snow, or ice tracked into a [premises] if it either created the hazardous condition, or had actual or constructive notice of the condition and a reasonable time to undertake remedial action" (Peralta-Mejia v Park Terrace Owners, LLC, 200 A.D.3d 727, 728 [2021]; see Radosta v Schechter, 171 A.D.3d 1112, 1113 [2019]; Gonzalez v Jenel Mgt. Corp., 11 A.D.3d 656, 656 [2004]). A "general awareness that [precipitation] may be tracked into a [premises] during inclement weather is insufficient to establish constructive notice of the particular condition which caused the plaintiff to fall" (Curtis v Dayton Beach Park No. 1 Corp., 23 A.D.3d 511, 512 [2005]; see Solazzo v New York City Tr. Auth., 6 N.Y.3d 734, 735 [2005]; Gonzalez v Jenel Mgt. Corp., 11 A.D.3d at 657). "To establish the existence of constructive notice, a plaintiff must show that the defect was visible and apparent and that the defect existed for a sufficient length of time prior to an accident to permit the defendant's employees to discover and remedy it" (Anthony v New York City Tr. Auth., 38 A.D.3d 484, 485-486 [2007]; see Gonzalez v Jenel Mgt. Corp., 11 A.D.3d at 656).
Here, plaintiff failed to present any evidence at trial as to how long the floor was in a dangerous condition prior to the time she fell. Consequently, she failed to establish a prima facie case that defendant had a "sufficient length of time prior to [her] accident" to remedy the condition of the floor (Anthony v New York City Tr. Auth., 38 A.D.3d at 485-486; see Gonzalez v Jenel Mgt. Corp., 11 A.D.3d at 656). Any finding that the floor existed in the condition that caused her to fall for hours before her accident would be based on speculation (see Harrison v New York City Tr. Auth., 113 A.D.3d 472, 474 [2014]; Gonzalez v Jenel Mgt. Corp., 11 A.D.3d at 657; Urena v New York City Tr. Auth., 248 A.D.2d 377, 378 [1998]). Further, "[a] property owner is not obligated to cover all of its floors with mats or to continuously mop up all moisture resulting from tracked-in precipitation" (Curtis v Dayton Beach Park No. 1 Corp., 23 A.D.3d at 512; see Ford v Citibank, N.A., 11 A.D.3d 508, 509 [2004]; Hong Xia Wang v JPMorgan Chase & Co., 36 Misc.3d 132 [A], 2012 NY Slip Op 51297[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). In light of the foregoing, "there [was] no valid line of reasoning and permissible inferences which could [have led] rational persons to the conclusions reached by the jury on the basis of the evidence presented at trial" (Anthony v New York City Tr. Auth., 38 A.D.3d at 485; see Cohen v Hallmark Cards, 45 N.Y.2d 493, 499 [1978]), and therefore, the court erred in not granting defendant's motion to set aside the jury verdict and for judgment as a matter of law (see Piacquadio v Recine Realty Corp., 84 N.Y.2d 967, 968 [1994]; Lewis v Metropolitan Transp. Auth., 99 A.D.2d 246, 251 [1984], affd 64 N.Y.2d 670 [1984]).
Accordingly, the judgment is reversed, the order dated September 10, 2020 is vacated, the branch of defendant's motion pursuant to CPLR 4404 (a) seeking to set aside the jury verdict on the issue of liability and for judgment as a matter of law is granted, and the complaint is dismissed.
BUGGS, J.P., MUNDY and HOM, JJ., concur.