Searcy v. New York City Transit Authority

169 A.D.3d 1076

95 N.Y.S.3d 237

Johnny L. SEARCY, Appellant,

v.NEW YORK CITY TRANSIT AUTHORITY, et al., Respondents.

2015–11361

Index No. 7141/12

Supreme Court, Appellate Division, Second Department, New York.

Argued–November 8, 2018

February 27, 2019

Lipsig, Shapey, Manus & Moverman, P.C. (Pollack, Pollack, Isaac & DeCicco, LLP, New York, N.Y. [Brian J. Isaac and Denise A. Rubin ], of counsel), for appellant.

Lawrence Heisler, Brooklyn, N.Y. (Anna J. Ervolina of counsel), for respondents.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, JOSEPH J. MALTESE, BETSY BARROS, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Arthur M. Schack, J.), dated October 16, 2015. The judgment, upon a jury verdict and upon an order of the same court entered August 13, 2015, denying the plaintiffs' motion pursuant to CPLR 4404(a) to set aside the jury verdict as contrary to the weight of the evidence and for a new trial, is in favor of the defendants and against the plaintiff, in effect, dismissing the complaint.

ORDERED that the judgment is affirmed, with costs.

On April 10, 2011, the plaintiff fell from a New York City subway platform onto the subway tracks and was struck by a train. As a result of the accident, the plaintiff sustained various physical injuries, including, among other things, having his left leg severed by the train's wheels and his right foot crushed, leading to its amputation. Thereafter, the plaintiff commenced this action to recover damages for personal injuries against the defendants, New York City Transit Authority, Metropolitan Transit Authority, and Lawrence Torinese, the train operator.

Following a jury trial, the jury found that the defendants were not negligent. Thereafter, the plaintiff moved pursuant to CPLR 4404(a) to set aside the jury verdict as contrary to the weight of the evidence and for a new trial. The Supreme Court denied that motion and entered a judgment in favor of the defendants and against the plaintiff, in effect, dismissing the complaint. We affirm.

Where the operator of a subway train sees a person lying on the tracks abutting a subway station platform, " ‘from such a distance and under such other circumstances as to permit him [or her], in the exercise of reasonable care, to stop before striking the person,’ " the operator's failure to avoid the accident may be found to be negligent ( Soto v. New York City Tr. Auth., 6 N.Y.3d 487, 493, 813 N.Y.S.2d 701, 846 N.E.2d 1211, quoting Coleman v. New York City Tr. Auth., 37 N.Y.2d 137, 140, 371 N.Y.S.2d 663, 332 N.E.2d 850 ). However, no such liability attaches where the accident was unavoidable under the circumstances (see Sanders v. New York City Tr. Auth., 83 A.D.3d 811, 813, 922 N.Y.S.2d 106 ; Dibble v. New York City Tr. Auth., 76 A.D.3d 272, 279, 903 N.Y.S.2d 376 ; Mirjah v. New York City Tr. Auth., 48 A.D.3d 764, 853 N.Y.S.2d 148 ).

"Whether a jury verdict should be set aside as contrary to the weight of the evidence does not involve a question of law, but rather requires a discretionary balancing of many factors" ( Nicastro v. Park, 113 A.D.2d 129, 133, 495 N.Y.S.2d 184 ). "The Appellate Division may not disregard a jury verdict as against the weight of the evidence unless ‘the evidence so preponderate[d] in favor of the [moving party] that [it] could not have been reached on any fair interpretation of the evidence’ " ( Killon v. Parrotta, 28 N.Y.3d 101, 107, 42 N.Y.S.3d 70, 65 N.E.3d 41, quoting Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163 ).

"[I]n reviewing the whole trial to ascertain whether the conclusion was a fair reflection of the evidence, great deference must be given to the fact-finding function of the jury" ( Nicastro v....