[*1]
Yevgeniya Shmidt v JP Morgan Chase & Co.
2014 NY Slip Op 50796(U) [43 Misc 3d 1226(A)]
Decided on May 22, 2014
Supreme Court, Kings County
Schack, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 22, 2014
Supreme Court, Kings County


Yevgeniya Shmidt, Plaintiff,

against

JP Morgan Chase & Co. and ROBERT KAUFMAN, Defendants.




14610/10



Appearances:



Plaintiff



Peter Crolly, Esq.



Bernstone & Grieco, LLP



NY NY



Defendant:



Kevin G. Horbatiuk, Esq.



Russo & Toner LLP



NY NY


Arthur M. Schack, J.

The following papers numbered 1 to 3 read on this motion:Papers Numbered:



Notice of Motion/Affirmation Annexed1



Affirmation in Opposition2



Reply Affirmation________________________________3



_____________________________________________________________________ ___

In this personal injury case, plaintiff YEVGENIYA SHMIDT (SHMIDT) alleges that she sustained injuries as a result of a fall on the sidewalk in front of 1722 Avenue U, Brooklyn, New York, at about 10:15 A.M., on May 27, 2010. I presided at the jury trial of this action. The jury rendered a liability verdict in favor of defendants JP MORGAN CHASE & CO. (CHASE) and ROBERT KAUFMAN (KAUFMAN), finding that defendants were negligent, but their negligence was not a substantial factor in causing plaintiff SHMIDT's accident. Plaintiff SHMIDT moves, pursuant to CPLR Rule 4404 (a), for a new trial, because: the jury's verdict was against the weight of the evidence; was inconsistent; and, the Court committed error in failing to give a missing witness charge and not allowing plaintiff to call "defendants on her direct case and to cross examine said



witnesses (¶ c. in notice of motion)."

Defendants CHASE and KAUFMAN oppose plaintiff SHMIDT's motion. For the reasons following, the Court finds that the jury's liability verdict in favor of defendants CHASE and KAUFMAN was not against the weight of the evidence and not inconsistent. Further, the affirmation in support of plaintiff's motion by plaintiff's counsel fails to present anything in support of the argument that the Court did not allow plaintiff to call "defendants on her direct case and to cross examine said witnesses."

Background

Plaintiff SHMIDT alleges that on the morning of May 27, 2010, while walking to the Brighton Line subway station at Avenue U and East 16th Street, she tripped and fell on a defective sidewalk outside the premises at 1722 Avenue U, Brooklyn New York. The building is owned by defendant KAUFMAN and leased to defendant CHASE, which operates a bank branch at that location. Plaintiff testified that the sidewalk defect was a hole, approximately one foot wide, seven feet long, one to three inches deep, in the shape of a "T," and she observed it for about one month prior to her accident, when walking to the Avenue U subway station. Since plaintiff was the only witness to her alleged accident, her testimony with respect to the actual accident was uncontradicted.

At trial, plaintiff presented the deposition testimony of defendant KAUFMAN and Sheri Steinhardt, then defendant CHASE's branch manager, and the trial testimony of Alexsandr Golender, plaintiff's son, and plaintiff herself. Defendant KAUFMAN'S deposition testimony established that he owned 1722 Avenue U and leased the premises to defendant CHASE. Ms. Steinhardt's deposition testimony stated that she was informed by one of her employees that plaintiff had fallen on the sidewalk and plaintiff then entered the bank branch where she told Ms. Steinhardt that she fell outside the branch in a sidewalk crack. Ms. Steinhardt prepared an accident report, which she faxed to the bank's insurance carrier. Plaintiff's son, Mr. Golender, testified that his mother telephoned from the bank about her fall, then he went to the bank to see his mother and took photos of the sidewalk defect. Plaintiff SHMIDT testified that while on the [*2]way to the Avenue U subway station to travel to work, she stepped into a hole, twisted her leg and fell forward. After she fell, she saw the hole. She said that she didn't see the defect because the sidewalk was crowded. However, she stated that she had seen the hole, on her way to work, a few times in the several weeks before the accident, but never told anyone at CHASE about the defect prior to the accident.

Defendants presented one witness, Ms. Steinhardt, the bank manager, who testified that she was working at the bank branch when the accident occurred and one of her employees came into the bank with plaintiff. She stated that plaintiff told her where she fell, which she agreed was in the photo of the defect taken by Mr. Golender. However, Ms. Steinhardt testified that she never noticed any hole on the sidewalk with the dimensions claimed by plaintiff and her son, but only saw a crack. Also, Ms. Steinhardt testified that she prepared an accident report.



Discussion

First, with respect to setting aside the jury verdict as against the weight of the evidence and being inconsistent, the power of the court to set aside a jury verdict and order a new trial is discretionary. It is codified in CPLR Rule 4404 (a), which states:

Motion after trial where jury required. After 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.

This broad power is invoked only when the jury verdict is against the weight of the



evidence. The Court, in Cohen v Hallmark Cards, Inc. (45 NY2d 493, 499 [1978]), instructed that, "the question whether a verdict is against the weight of the evidence involves what is in large part a discretionary balancing of many factors (see Mann v Hunt, 283 App Div 140 [3d Dept 1953])." The Appellate Division, Second Department, in applying the Cohen v Hallmark Cards, Inc. standard in Nicastro v Park (113 AD2d 129, 133 [2d Dept 1985]), held:

The fact that determination of a motion to set aside a verdict

involves judicial discretion does not imply, however, that the trial

court can freely interfere with any verdict that is unsatisfactory or with

which it disagrees. A preeminent principle of jurisprudence in this

area is that the discretionary power to set aside a jury verdict and

order a new trial must be exercised with considerable caution, for in

the absence of indications that substantial justice has not been done,

a successful litigant is entitled to the benefits of a favorable jury verdict.

Fact-finding is the province of the jury, not the trial court, and a court

must act warily lest overzealous enforcement of its duty to oversee the

proper administration of justice leads it to overstep its bounds and

"unnecessarily interfere with the fact-finding function of the jury to a

degree that amounts to an usurpation of the jury's duty" [citations

omitted]. This is especially true if a verdict is contested solely on

weight of the evidence grounds and interest of justice factors have

not intervened to flavor the judicial response to the motion. Absent

such complications, the challenge is directed squarely at the accuracy

of the jury's fact-finding and must be viewed in that light. [Emphasis

added]



(See Matter of State v Edison G., 107 AD3d 723, 724 [2d Dept 2013] Felicia v Boro Crescent Corp., 105 AD3d 697, 698 [2d Dept 2013] Caliendo v Ellington, 104 AD3d 635, 636-637 [2d Dept 2013] Loprieto v Scotti, 101 AD3d 829, 829-830 [2d Dept 2012]



Daniels v Sims, 99 AD3d 658, 659 [2d Dept 2012] Bergamo v Verizon N.Y, Inc., 95 AD3d 916, 917 [2d Dept 2012]).

Further, the Court is mindful of the admonition in Shaw v Board of Educ. of City of New York (5 AD3d 468 [2d Dept 2004]), that a "jury verdict is entitled to great deference and should be set aside as against the weight of the evidence only when it could not have been reached on any fair interpretation of the evidence." (See Schwartz v Nagori, 115



AD3d 733, 734 [2d Dept 2014] Hatzis v Buchbinder, 112 AD3d 890 [2d Dept 2013] Wallace v City of New York, 108 AD3d 760, 761 [2d Dept 2013] Doran v McNulty, 107 AD3d 843, 844 [2d Dept 2013] Soto v Elmback Owners, LLC, 106 AD3d 986 [2d Dept 2013] Delva v New York City Transit Authority, 85 AD3d 712 [2d Dept 2011]). Moreover, "[i]t is well settled that a jury verdict should not be set aside where to do interferes with the fact finding function of the jury (see Durante v Frishling, 81 AD2d 631 [2d Dept 1981])." (Bivona v Port Authority of New [*3]York and New Jersey, 118 AD2d 747, 748 [2d Dept 1986]).

In Hernandez v Carter and Parr Mobile, Inc. (224 AD2d 586, 587 [2d Dept



1996]), the Court instructed that "[i]t is beyond cavil that the determination of the jury which observed the witnesses and the evidence is entitled to great deference. We find that the jury's determination in favor of the defendant was based upon a fair interpretation of the evidence and we reject the plaintiffs' contention that the verdict is against the



weight of the evidence." (See Wallace v City of New York, supra; Das v Costco Wholesale Corp., 98 AD3d 712, 712 [2d Dept 2012] Gaudiello v City of New York, 80 AD3d 726 [2d Dept 2011] Delva v New York City Transit Authority, supra).

In the instant action, the jury observed the witnesses, measured their credibility and



weighed the evidence. The Court finds that the jury had a rational basis for its liability verdict, which was not against the weight of the evidence and not inconsistent. The Court cannot find any reason to set aside the jury verdict. In the instant case, the jury listened to the deposition testimony of defendant KAUFMAN, the owner of the premises, and the bank's manager, and heard the trial testimony of plaintiff, her son and the bank manager, weighed their demeanor and credibility, and evaluated the evidence. As in Sorokin v Food Fair Stores, Inc. (51 AD2d 592, 593 [2d Dept 1976]), "[t]he credibility of the witnesses, the truthfulness and accuracy of the testimony, whether contradicted or not, and the significance of weaknesses and discrepancies are all issues for the trier of the facts." The jury in the instant action performed its function and "properly considered the conflicting testimony of the witnesses and made its determination, which was not against the weight of the evidence." (Gagliardi v Madden, 207 AD2d 478 [2d Dept 1994]).

"A jury's finding that a party was at fault but that such fault was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause (see Misa v Filancia, 2 AD3d 810, 811 [2d Dept



2002] Salazar v City of New York, 302 AD2d 580, 581 [2d Dept 2003])." (Garrett v Manasar, 8 AD3d 616, 617 [2d Dept 2004]). (See Sliwowski v City of New York. 113 AD3d 749 [2d Dept 2014] Niebles v MTA Bus Co., 110 AD3d 1047 [2d Dept 2013] Spero v Awasthi Ltd. Partners, 106 AD3d 988, 989 [2d Dept 2013]). In the instant action a jury could have reasonably concluded that plaintiff SHMIDT did not pay attention to where she was walking prior to the accident and could have been the sole cause of her own accident by not noticing the open and obvious condition of the sidewalk. In addition, plaintiff gave different testimony about the dimensions of the purported hole at her deposition and at trial. The photographs in evidence, taken by her son, show a minimal, if any, height differential. This might have cast doubt by the jury about her credibility. Moreover, defendant CHASE established that it did not create the alleged defect in the sidewalk and did not have any actual notice and/or constructive notice of the alleged defect. Thus, the issues of negligence and proximate cause are not inextricably interwoven and therefore, the jury's verdict is not inconsistent and can be reconciled with a reasonable view of the evidence. The Court cannot set aside the liability verdict as against the weight of the evidence or as inconsistent.

Next, plaintiff's claim in the notice of motion that the Court committed error in failing to give a missing witness charge and not allow plaintiff to call "defendants on her direct case and to [*4]cross examine said witnesses," is erroneous. Moreover, plaintiff's affirmation in support of the motion fails to address these arguments and present any arguments in support of this relief.

A review of the trial transcript (tr. trans., pp. 116 - 117) shows that plaintiff requested a missing document charge, PJI 1:77, for the accident report prepared by Ms. Steinhardt, not a missing witness charge. I denied the request for a missing document charge and allowed the attorneys for both defendant and plaintiff to comment about the accident report in their summations.

Before the opening of the trial there was a discussion, outside of the presence of the jury, by the Court and opposing counsel (tr. trans., pp. 5 - 9) about whether plaintiff's counsel could call defendants as direct witness and immediately treat them as hostile witnesses and ask them leading questions. After a discussion with opposing counsel, citing Professor Richard Farrell's text, Prince Richardson on Evidence, § 6-228 [11th ed] and the Court of Appeals decisions in People v Saxon (187 NY 495 [1907]) and Becker v Koch (104 NY 394 [1997]), I explained that it is discretionary with the trial judge to determine if a witness is hostile, and if hostility is demonstrated on direct examination the trial judge may allow the witness to be treated as hostile. I stated to plaintiff's counsel (tr. trans., p. 6, line 24 - p. 7, line 5) "if you ask questions of the witness and the witness engages in what I will call a tap dance by being evasive, there is a hostility or unwillingness to answer, then I will allow you to ask leading questions. But until the witness does that, I am not going to. It is what it is. You can decide whether you want to call them or not. That's up to you." Plaintiff's counsel could have called defendant KAUFMAN and the bank manager, Ms. Steinhardt, as a witness, but chose not to do this. I never precluded plaintiff from calling them as witnesses.

Conclusion

Accordingly, it is

ORDERED, that the motion of plaintiff YEVGENIYA SHMIDT, pursuant to



CPLR Rule 4404 (a), to set aide the jury verdict on liability is denied.

This constitutes the Decision and Order of the Court.



ENTER



___________________________HON. ARTHUR M. SCHACK



J. S. C.