Higgins v West 50th St. Assoc., LLC
2011 NY Slip Op 51157(U) [32 Misc 3d 1203(A)]
Decided on June 20, 2011
Supreme Court, New York County
Kern, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 20, 2011
Supreme Court, New York County

Joanne Noel Higgins, Plaintiff,




For plaintiff:

Kramer & Dunleavy, L.L.P.

350 Broadway, Suite 1100

New York, NY 1001 3

Tel: (212) 226-6662

For defendants:

West 50th St. Associates, LLC, Leonard Zanagas &

Vision Enterprises Management:

Herzfeld & Rubin, P.C.

125 Broad Street

New York, New York 10004

(212) 471-8500

For defendant Vlad Restoration:

Goldberg Segalla LLP

11 Martine Avenue

White Plains, NY 10606

(914) 798-5400

Cynthia S. Kern, J.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion: [*2]


Notice of Motion and Affidavits Annexed....................................1

Notice of Cross Motion and Answering Affidavits.......................2

Replying Affidavits......................................................................3


____________________________________________________________________ _________

Plaintiff commenced the instant action to recover for personal injuries she allegedly incurred when she slipped on water on the stairway in defendants' building. A trial was held before this court. At the close of evidence, the court granted defendant Vlad Restoration Ltd's ("Vlad") motion for a directed verdict. At the close of the trial, the jury rendered a verdict in favor of the plaintiff and against the remaining defendants. Defendants West 50th Street Associates, LLC, Leonard Zanagas and Vision Enterprises Management LLC (the "Moving Defendants") now move to set aside the jury's verdict as contrary to the weight of the evidence pursuant to CPLR §4404(a) or, in the alternative, to set aside the jury award as excessive pursuant to CPLR §5501(c). For the reasons set forth below, their motion is denied except to the extent that the award for future medical expenses is vacated and a new trial on the issue is ordered unless plaintiff stipulates to a reduction in that award.

The relevant facts are as follows. On July 12, 2004, a clogged rooftop drain caused rainwater to overflow and cascade into the Moving Defendants' building at 365 West 50th Street. Plaintiff Joanne Noel Higgins slipped on the water and fell down the stairs, hitting the back of her head on a number of the concrete steps. At a trial held before this court between January 10, 2011 and February 4, 2011, a jury found that the Moving Defendants were negligent and that their negligence was a substantial factor in causing the accident. The jury found that plaintiff had not been negligent. Plaintiff alleged that she had sustained back injuries as well as a traumatic brain injury and submitted expert testimony as to her injuries. The jury awarded plaintiff $1.5 million for past pain and suffering, $1 million for future pain and suffering to cover 43 years, $129,004 for lost earnings, $2 million for future lost earnings covering 28 years, $14,000 for past medical expenses and $2.5 million for future medical expenses, covering 43 years.

Section 4404(a) of the CPLR provides that "upon a motion of any party or on its own initiative, a court may set aside a verdict . . . 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 . . . where the verdict is contrary to the weight of the evidence, [or] in the interest of justice." The standard for setting aside a verdict is very high. The Court of Appeals has held that a verdict may be set aside only when "there is simply no valid line of reasoning and permissible inferences" which could have led to the conclusion reached by the jury. Cohen v Hallmark Cards, Inc., 45 NY2d 493 (1978). The First Department held that a verdict "will not be set aside "unless the preponderance of the evidence is so great that the jury could not have reached its verdict upon any fair interpretation of the evidence." Pavlou v City of New York, 21 AD3d 74, 76 (1st Dept 2005). Moreover, the evidence must be construed in the light most favorable to the party that prevailed at trial. See Motichka v Cody, 279 AD2d 310 (1st Dept 2001). Where the case presents conflicting expert testimony, "[t]he weight to be accorded the conflicting testimony of experts is a matter [*3]peculiarly within the province of the jury.'" Torricelli v Pisacano, 9 AD3d 291 (1st Dept 2004) (citation omitted); see also Cholewinski v Wisnicki, 21 AD3d 791 (1st Dept 2005).

"A landowner has a duty to maintain its property in a reasonably safe condition in view of all the circumstances..." Boderick v RY Mgmt. Co., Inc., 71 AD3d 144, 147 (1st Dept 2009). In order to recover damages for a negligence claim, the plaintiff must prove that the defendant "created or had actual or constructive notice of the hazardous condition" and that the dangerous condition was the proximate cause of plaintiff's injury. Id. Violation of a state statute constitutes negligence per se whereas violation of a municipal ordinance or regulation constitutes only evidence of negligence. Elliott v City of New York, 95 NY2d 730, 734 (2001). Where negligence is shown because of a statutory or regulatory violation, there is no need to show notice. See Ragona v Hamilton Hall Realty, 251 AD2d 391 (2nd Dept 1998).

The Moving Defendants are not entitled to have the jury's verdict as to liability set aside because the jury's verdict is sufficiently supported by the evidence. There was sufficient evidence for the jury to conclude that the Moving Defendants violated Multiple Dwelling Law §77(3) and (4) which require that roofs be properly drained so that water does not drip to the ground and requires every building owner to keep drainage systems clean and in good repair. Having found that these statutes had been violated, the jury could have rationally concluded that the Moving Defendants were negligent. Similarly, the lack of proper drainage could have led the jury to rationally conclude that the Moving Defendants violated NYC Administrative Code §27-2027 and Reference Standard 16P110.9(a), which also require proper drainage and require a strainer on roof drains, respectively, and therefore could have found that they were negligent.

Defendants' citations to the contrary are not on point. In none of those cases did the court address the issue of whether any statutes or regulations were violated. See, e.g., Rivera v 2160 Realty Co., L.L.C., 4 NY3d 837 (2005) (addressing whether defendant had actual or constructive notice of beer bottle on steps); Slates v NYCHA, 79 AD3d 435 (1st Dept 2010) (addressing whether defendant had actual or constructive notice of black ice or created the condition); Viera v Riverbay Corp., 44 AD3d 577 (1st Dept 2007) (addressing whether defendant had actual or constructive notice of water on stairs and specifically stating that a violation of a provision of the Multiple Dwelling Law was not at issue). Moreover, defendants' argument applies only to violations of general provisions of the Multiple Dwelling Law. The provisions at issue here, however, impose specific duties upon the defendants. Section 77(3), as noted above, specifically requires that the roof "be drained so that all storm water" would be conveyed in a manner to avoid dripping on the ground and dampness or leaks in the building. The provision of the Administrative Code at issue here, §27-2027(a) is similarly specific and requires unobstructed drainage from all roofs. Finally, Reference Standard P110.9(a) is even more detailed in its requirement that roof drains be equipped with strainers and even specifies the sizes of those strainers.

There was also sufficient evidence for the jury to reach the conclusion that the Moving Defendants had constructive notice of the dangerous condition of the rooftop drain. The building's porter's somewhat unclear testimony as to whether he examined the drain itself together with the nature of the materials found clogging the drain could have led the jury to conclude that the porter had not examined the drain in the week before the accident and that the drain was clogged for a sufficient length of time prior to plaintiff's accident such that the [*4]defendants, in the exercise of reasonable care, should have discovered and corrected it. In the alternative, the jury could have rationally concluded that the Moving Defendants caused and created the dangerous condition by allowing construction materials to clog the drain. There was sufficient circumstantial evidence for the jury to find that the Moving Defendants caused and created the condition.

The jury's conclusion that the Moving Defendants' negligence was a proximate cause of the accident was also supported by sufficient evidence. It is undisputed that plaintiff slipped on water that was pouring into the building from the roof due to the clogged drain. The clogged drain caused water to accumulate on the steps, which in turn caused plaintiff to slip. Therefore, a reasonable jury could have found, based on the evidence presented at trial, that the Moving Defendants' negligence was the proximate cause of the accident.

The jury's finding that the accident was foreseeable is also sufficiently supported by the evidence. Plaintiff's expert, Nicholas Bellizzi, an engineer, testified that a strainer on the drain would have prevented the clog. The Moving Defendants had the opportunity to cross-examine Mr. Bellizzi and present their own expert at trial but chose not to. Mr. Bellizzi's testimony was uncontradicted. The jury was free to accept or reject it. It clearly chose to accept it. Based on Mr. Bellizi's testimony and other evidence presented at trial, the jury could have reasoned that, without a strainer, the drain could become clogged. That clog could cause water to spill into the building, creating a dangerous condition.

The court now turns to the Moving Defendants' motion to reduce the amount of damages awarded to plaintiff. As an initial matter, the jury's award for future medical expenses exceeded the amount predicted by plaintiff's expert. Accordingly, plaintiff has agreed to stipulate to a reduction of that portion of the award to conform to her expert's prediction of $2,113,559.00. If she does not do so, the court will vacate the award for future medical expenses and order a new trial only as to this issue.

The remainder of the damages award is supported by the evidence and is in line with what other courts have found reasonable compensation for brain and back injuries. As an initial matter, the Moving Defendants assert that there is insufficient evidence to support a finding that plaintiff sustained a brain injury at all. The Moving Defendants are incorrect. Plaintiff submitted evidence that she was diagnosed with a mild traumatic brain injury within one week of the accident. She also submitted the expert testimony of Dr. Joshua Cantor and Dr. Brian Greenwald, both with specialties in traumatic brain injury. The Moving Defendants submitted their own expert testimony. As with other expert testimony, the jury was free to determine which experts' testimony to accept. It apparently found the testimony submitted by plaintiff's experts more convincing. That testimony is a sufficient basis for the jury to conclude that plaintiff sustained a traumatic brain injury.

As to damages, courts have held that awards of between $1 million and $4.75 million are reasonable for traumatic brain injuries. See Sadhwani v New York City Transit Auth., 66 AD3d 405 (1st Dept 2009) (award of $1.9 million over 10 years for brain injury was upheld as reasonable); Hernandez v Vavra, 62 AD3d 616 (1st Dept 2009) ($1.75 million jury award over 15 years for brain injury upheld as reasonable); Cintron v New York City Transit Auth., 50 AD3d 466 (1st Dept 2008) (award modified to $4.75 million for past and future pain and suffering of 14-year-old boy who sustained brain injury and hip fracture); Paek v City of New York, 28 AD3d [*5]207 (1st Dept 2006) (award for future pain and suffering due to brain injury reduced to $3 million over 40 years); Reed v City of New York, 304 AD2d 1 (1st Dept 2003) (upheld award of $2.5 million for pain and suffering as a result of brain injury over 30 years). The cases cited by the Moving Defendants involve back injuries only, not traumatic brain injuries, and are therefore inapposite.

The jury's awards for past and future earnings is similarly reasonable. In the instant case, the award for past earnings conformed exactly to the amount calculated by plaintiff's expert. The jury was free to accept or reject the expert's calculations and its choice to accept them was supported by the evidence.

An award for future lost earnings is not limited to plaintiff's actual prior earnings "and the assessment of damages may instead be based upon future probabilities." Kirschhoffer v Van Dyke, 173 AD2d 7 (3rd Dept 1991). The jury is free to accept or reject the expert's predictions regarding plaintiff's future lost earnings. In the instant case, the award for future lost earnings falls between two amounts the expert provided, one based on plaintiff's past earnings and one based on the assumption that she would work full-time as a salaried make-up artist in New York City. It is perfectly rational for the jury to "split the difference" between these two amounts as neither the jury nor plaintiff's expert can predict the future.

The Moving Defendants' motion seeking a collateral source hearing to determine if the damages awarded for plaintiff's economic losses, past or future, have been replaced or indemnified by Social Security payments is denied. As an initial matter, plaintiff has agreed to stipulate to deduct all Social Security disability payments that she has received up to and including the date of the judgment in this action. As to future payments, the First Department has held that defendants must establish "with reasonable certainty" not only that plaintiff receives such payment but that plaintiff "would continue to receive" them. See Adams v Genie Industries, Inc., 81 AD3d 480 (1st Dept 2011). In Ruby v Budget Rent A Car Corp., 23 AD3d 257, the First Department explicitly held that a collateral source offset for future Social Security disability benefits "should not have been granted where plaintiff's experts maintained that he is capable of working in the future albeit in a reduced capacity... and defendants' experts maintained that plaintiff is capable of working as he had before the accident." In the instant case, the facts are analogous to those of Ruby in that both plaintiff's and the Moving Defendants' experts at trial implied or stated outright that plaintiff is expected to be able to work, in some capacity, in the future. Although it is true that plaintiff in the Ruby case was predicted to earn considerably more than the plaintiff in the instant case, the Moving Defendants have still failed to show with reasonable certainty that plaintiff would continue to receive such benefit. Accordingly, their motion for a collateral source hearing is denied.

The Moving Defendants' motion for a structured settlement hearing is also denied. Such a hearing is neither necessary nor required.

Finally, the court declines to order a post-verdict hearing on the issue of whether juror number 3, Midalya Cruz, was qualified to serve as a juror or deliberate. The relevant facts are as follows. At voir dire, no concerns were raised about Ms. Cruz's ability to understand or communicate in English. After the conclusion of the trial, Thomas Abruzzini, juror number one, wrote a letter to the court stating that Ms. Cruz had another juror translate the verdict sheet into Spanish for her. A letter from defense counsel followed, requesting a hearing by the court. This [*6]court declined to hold such a hearing at that time. Along with this motion, the Moving Defendants have submitted an affidavit from Mr. Abruzzini to the same effect as his original letter.

This court now adheres to its original decision not to hold a hearing regarding the qualifications of juror number three or the validity of the deliberations process. Jurors are required to be able to communicate in English but are not required to be able to read and write English. NY Judiciary Law §510. Ms. Cruz communicated in English during voir dire and filled out a questionnaire written in English. Defense counsel never questioned her qualifications to be a juror or her ability to communicate in English and did not object to her selection as a juror. Furthermore, the Moving Defendants do not allege that Ms. Cruz does not understand English or is unable to communicate in English. Finally, there is no evidence that other jurors translated evidence or testimony for Ms. Cruz. Accordingly, the Moving Defendants' request for a hearing on this issue is denied.

In addition, the Moving Defendants' request for a new trial is denied. The single statement referring to disability payments made by plaintiff's counsel is insufficiently prejudicial to warrant a new trial, particularly in light of the curative instruction to ignore it given to the jury. Similarly, the number of lay witnesses permitted was in the discretion of the trial court, as was the discharge of juror number 5 by the court.

The court now turns to the motion to reinstate the Moving Defendants' cross-claims against Vlad. The court adheres to its decision, made on the record, to grant Vlad's motion for a directed verdict at the close of evidence. Vlad had no duty to plaintiff. See Espinal v Melville Snow Contractors, Inc., 98 NY2d 136 (2002). Without a duty to plaintiff, Vlad could only be liable if it launched an instrument of harm. See id. The evidence showed that the types of materials found in the drain - metal, tar and wood - were not materials used by Vlad in its work, such as sand or cement. Although the Moving Defendants allege that there was an ambiguity in the testimony of Fire Chief Meyers regarding the materials found in the drain, the court found that his testimony was clear and unequivocal. The only materials in the drain were "general construction debris" such as "wood, metal, tar" and not sandbags or cement bags. Therefore, Vlad could not be liable as a matter of law.

Accordingly the Moving Defendants' motion is denied except to the extent that the damages award for future medical expenses is vacated and this matter is set down for a new trial upon the issue of damages for future medical expenses only unless, within 30 days of service of a copy of this order with notice of entry, plaintiff stipulates to reduce the award to the damages award for future medical expenses is reduced to $2,113,559.00. This constitutes the decision and order of the court.

Dated: June 20, 2011Enter: _____________________