Opinion
6951 6952 Index 102889/09
06-21-2018
Kathleen BEDNARK, Plaintiff–Respondent, v. The CITY OF NEW YORK, et al., Defendants–Respondents. Heron Real Estate Corp., Defendant–Appellant, BP America, Inc. et al., Defendants.
Carman, Callahan & Ingham, LLP, Farmingdale (James M. Carman of counsel), for appellant. Rheingold, Giuffra, Ruffo & Plotkin, LLP, New York (Jeremy A. Hellman of counsel), for Kathleen Bednark, respondent. Zachary W. Carter, Corporation Counsel, New York (Diana Lawless of counsel), for City of New York, respondent. Lawrence Heisler, Brooklyn (Timothy J. O'Shaughnessy of counsel), for New York City Transit Authority and Manhattan and Bronx Surface Transit Operating Authority, respondents.
Carman, Callahan & Ingham, LLP, Farmingdale (James M. Carman of counsel), for appellant.
Rheingold, Giuffra, Ruffo & Plotkin, LLP, New York (Jeremy A. Hellman of counsel), for Kathleen Bednark, respondent.
Zachary W. Carter, Corporation Counsel, New York (Diana Lawless of counsel), for City of New York, respondent.
Lawrence Heisler, Brooklyn (Timothy J. O'Shaughnessy of counsel), for New York City Transit Authority and Manhattan and Bronx Surface Transit Operating Authority, respondents.
Richter, J.P., Tom, Mazzarelli, Gesmer, Moulton, JJ.
Order, Supreme Court, New York County (Margaret A. Chan, J.), entered on or about May 11, 2017, which, insofar as appealed from, denied the motion of defendant Heron Real Estate Corp. (Heron) to set aside the verdict as against it, unanimously affirmed, without costs.
Heron is the owner of the property abutting the defective sidewalk on which plaintiff fell when alighting from a Transit Authority bus. On a prior appeal, this Court affirmed the denial of Heron's motion for summary judgment and reinstated the complaint as against defendant City of New York, finding that there was an issue of fact as to whether or not the area of the sidewalk where plaintiff fell was "within a designated bus stop location," which would be the City's responsibility to maintain rather than Heron's responsibility (127 A.D.3d 403, 404, 7 N.Y.S.3d 75 [1st Dept. 2015] ; see Administrative Code of City of N.Y. § 7–210).
At trial, the City's witness testified that the bus stop area extended 158 feet from the bus stop sign located beyond Heron's property, including a "no standing" zone in front of Heron's property. The City's witness made clear that his testimony about the length of the bus stop concerned an area in the street or roadway, not the sidewalk. He also testified that the City was responsible for maintaining the roadway and bus stop signs, and that he did not know who was responsible for maintaining the sidewalk. Thus, the evidence did not establish as a matter of law that the area where plaintiff fell was within a City designated bus stop (compare Phillips v. Atlantic–Hudson, Inc., 105 A.D.3d 639, 963 N.Y.S.2d 582 [1st Dept. 2013] ).
Accordingly, the jury's finding that plaintiff did not fall within a designated bus stop was supported by the evidence, and was not "utterly irrational" so as to warrant setting aside the verdict based on insufficiency grounds ( Killon v. Parrotta, 28 N.Y.3d 101, 108, 42 N.Y.S.3d 70, 65 N.E.3d 41 [2016] [internal quotation marks omitted] ). Nor was the verdict based upon an unfair interpretation of the evidence, so as to justify setting aside the verdict as against the weight of the evidence (see id. at 107–108, 42 N.Y.S.3d 70, 65 N.E.3d 41 ).