Opinion
No. 22700/2018E Motion Sequence No. 3
01-16-2024
BRUCE BROWN, JR, Plaintiff, v. VODA REALTY LLC and GAZIVODA MANAGEMENT, LLC, Defendants.
Unpublished Opinion
DECISION & ORDER
GUZMAN, J.
Plaintiff Bruce Brown, Jr. commenced this action to recover damages for personal injuries he sustained on September 6, 2017, at 2:30 a.m., after a portion of the ceiling fell on him as he was sleeping in the living room of apartment 1 IE, 1006 Gerard Avenue, Bronx, New York. Plaintiff had lived in the apartment with his wife and children for over thirty years, but was divorced as of the date of the accident, and slept in a twin bed in the living room. At trial, both Plaintiff and his ex-wife testified that there were water stains on the living room ceiling, and the building superintendent had been notified about the condition of the ceiling prior to Plaintiff's accident.
The apartment had three bedrooms: one for Plaintiff, one for their son Comrad, and a third bedroom that was used by another son when he visited with his own family.
The jury rendered a verdict in favor of Plaintiff on February 14, 2023, finding that Defendants were negligent, and their negligence was a substantial factor in causing Plaintiff's injuries. The jury awarded $500,000 to Plaintiff for past pain and suffering and $500,000 for future pain and suffering, intended to cover a period of ten years.
CPLR § 4404 (a) provides that "[a]fter a trial of a cause of action or issue triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside a verdict or 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 of 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 as long as is deemed reasonable by the court."
"The question as to whether a verdict is against the weight of the evidence involves what is in large part a discretionary balancing of many factors, and for a court to conclude that, as a matter of law, a jury verdict is not supported by sufficient evidence requires a finding that there is simply no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented at trial." Gonzalez v. City of New York, 45 A.D.3d 347, 348, 846 N.Y.S.2d 92 (1st Dep't 2007) (internal quotations omitted), citing Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282 (1978). Alternatively, for a trial court to set aside a verdict in the interest of justice, "[t]he Trial Judge must decide whether substantial justice has been done, whether it is likely that the verdict has been affected and must look to his own common sense, experience and sense of fairness rather than to precedents in arriving at a decision." Micallef v. Miehle Co., Div. of Miehle-Goss Dexter, Inc., 39 N.Y.2d 376, 381, 384 N.Y.S.2d 115 (1976) (internal quotations omitted).
On this motion, Defendants argues that (1) Defendants were entitled to a jury charge and verdict sheet accounting for Plaintiff's comparative negligence in failing to avoid the visible and apparent ceiling condition, by simply sleeping in the open third bedroom or moving his twin bed out from under the damaged portion of ceiling; (2) a missing witness charge should have been granted for Dr. Felix Karafin, Plaintiff's treating doctor at All Boro Medical Rehabilitation PLLC, who prepared treatment plan reports dated January 18, 2019, October 26, 2018, July 20, 2018, February 16, 2018, January 12, 2018, December 15, 2017; and (3) Defendants are entitled to a new liability trial because the jury was charged on the New York State Fire Prevention and Building Code, although Plaintiff failed to establish the applicability of the Code. Defendants also contend that the awards for past and future pain and suffering should be conditionally reduced to the sums of $150,000 and $150,000, based upon a comparison of the damages evidence in this case with binding First Department precedent.
Defendants first contend that a charge on comparative fault should have been read to the jury because the ceiling was in a visibly defective condition, and Plaintiff could have avoided the accident by sleeping in one of the bedrooms or by moving his bed to a different location in the living room. In support of their argument, Defendants cite numerous cases holding that where a plaintiff could have avoided a hazard, or taken an alternative route, a question of comparative negligence is raised. See, e.g., Witherspoon v. Columbia University, 7 A.D.3d 702, 702 (2d Dep't 2004) (where "Plaintiff slipped and fell on ice while walking across an open courtyard on the defendant's campus," but "could have taken an alternate route along a pathway under an overhang," the "plaintiffs knowledge of the icy condition in the courtyard and the presence of an alternate route under the overhang were circumstances from which the jury might or might not have found her contributorily negligent").
Here, however, although Plaintiff testified that the ceiling had been sagging for two or three weeks, and the superintendent "used a broomstick to push up and down on the ceiling," there is no testimony that the ceiling was in imminent danger of collapsing, or that Plaintiff was fully conscious or aware of any risk in sleeping under that portion of the ceiling that was defective. Nor was he asked at trial whether he believed that the ceiling was at risk of falling. Accordingly, there was no valid line of reasoning from which the jury could have concluded that Plaintiff engaged in conduct which fell below the standard required by a reasonably prudent person to keep himself from harm. Linzer v. Wachsman, 232 A.D.2d 530, 648 N.Y.S.2d 981 (2d Dep't 1996). A jury charge on comparative negligence was therefore not warranted. See Lemon v. Nivram Realty Corp., 172 A.D.2d 288, 568 N.Y.S.2d 601 (1st Dep't 1991) (finding no reasonable view of the evidence justified a comparative negligence charge arising from plaintiff's failure to repair the bathroom ceiling or to shave elsewhere in the apartment).
Defendants next contend that a missing witness charge should have been given based on Plaintiff's failure to call his treating physician from All Boro Medical Rehabilitation PLLC. A "missing witness" charge is warranted where the Plaintiff fails to produce a treating physician and fails to show the witness is unavailable, not under Plaintiff's control, or that the witness' testimony would be cumulative. Dayanim v. Unis, 171 A.D.2d 579, 580 (1st Dep't 1991). Here, Defendants have not demonstrated that any testimony from Plaintiff's treating physicians at All Boro Medical Rehabilitation, where Plaintiff went for physical therapy, would have not been cumulative to the testimony of Dr. Guttstein, who relied on the medical records.
With respect to Defendants' contention that Plaintiff was not competent to testify, Defendant did not make this argument at trial or otherwise demonstrate that Plaintiff could not understand the nature of an oath, or was unable to give a reasonably accurate account of what he saw about the matters in question. The capacity of a person to be a witness is presumed and, if an objection is made about competency, it is for the court, in its exercise of discretion, to determine mental capacity to testify. See People v. Rensing, 14 N.Y.2d 210, 250 N.Y.S.2d 401 (1964). Defendants requested no such ruling, because there was no basis to do so.
Similarly, there is no merit to Defendants' contention that the Court improperly charged the jury with the general langues set forth in the New York State Uniform Fire Prevention and Building Code requiring that ceilings must be kept in good repair.
Finally, the Court notes that the amount of damages to be awarded in a personal injury action is primarily a question of fact for the jury. Poggi v. Sexton, 248 A.D.2d 521, 669 N.Y.S.2d 878 (2d Dep't 1998), Iv. den. 92 N.Y.2d 807 (1998). "In determining whether a jury's verdict is inadequate, the court must consider whether the jury award deviates materially from what would be reasonable compensation." Stedman v. Bouillon, 234 A.D.2d 876, 877, 651 N.Y.S.2d 685, 686 (3d Dep't 1996). To determine whether an award "deviates materially from what would be reasonable compensation," the courts compare the jury's award to awards allowed in analogous cases involving similar types of injuries. Id.; see Lopiano v. Baldwin Transportation Inc., 248 A.D.2d 161, 669 N.Y.S.2d 810 (1st Dep't 1998). Upon taking into consideration the evidence of the extent of injury to the Plaintiff presented at trial, the Court finds that the jury's award of damages did not "deviate materially from what would be reasonable compensation." Accordingly, for the foregoing reasons, it is hereby:
ORDERED AND ADJUDGED that Defendants' motion to set aside the verdict is denied; and it is further
ORDERED and ADJUDGED that Defendants shall serve Plaintiff with a copy of this Order with Notice of Entry within thirty days of Entry.
The forgoing constitutes the Decision &Order of the Court.