FILED: APPELLATE DIVISION - 2ND DEPT 07/20/2023 12:32 PM
`NYSCEF DOC. NO. 6
`RECEIVED NYSCEF: 07/20/2023
`
`2023-04429
`
`To Be Argued By:
`Christopher J. Donadio
`Time Requested: 15 Minutes
`
`New York Supreme Court
`
`APPELLATE DIVISION — SECOND DEPARTMENT
`
`>> >>
`
`RICHARD DOUGHERTY,
`
`against
`
`Docket No.
`
`2023-04429
`
`Plaintiff-Respondent,
`
`359 LEWIS AVENUE ASSOCIATES, LLC,
`Defendant-Appellant.
`
`BRIEF FOR PLAINTIFF-RESPONDENT
`
`GAIR, GAIR, CONASON, RUBINOWITZ,
`BLOOM, HERSHENHORN, STEIGMAN
`& MACKAUF
`Attorneys for Plaintiff-Respondent
`80 Pine Street, 34th Floor
`New York, New York 10005
`212-943-1090
`cdonadio@gairgair.com
`
`Of Counsel:
`
`Christopher J. Donadio
`
`Kings County Clerk’s Index No. 515902/2016
`
`
`NYSCEF DOC. NO. 6
`RECEIVED NYSCEF: 07/20/2023
`
`2023-04429
`
`To Be Argued By:
`Christopher J. Donadio
`Time Requested: 15 Minutes
`
`New York Supreme Court
`
`APPELLATE DIVISION — SECOND DEPARTMENT
`
`>> >>
`
`RICHARD DOUGHERTY,
`
`against
`
`Docket No.
`
`2023-04429
`
`Plaintiff-Respondent,
`
`359 LEWIS AVENUE ASSOCIATES, LLC,
`Defendant-Appellant.
`
`BRIEF FOR PLAINTIFF-RESPONDENT
`
`GAIR, GAIR, CONASON, RUBINOWITZ,
`BLOOM, HERSHENHORN, STEIGMAN
`& MACKAUF
`Attorneys for Plaintiff-Respondent
`80 Pine Street, 34th Floor
`New York, New York 10005
`212-943-1090
`cdonadio@gairgair.com
`
`Of Counsel:
`
`Christopher J. Donadio
`
`Kings County Clerk’s Index No. 515902/2016
`
`
`
`TABLE OF CONTENTS
`
`Page
`
`TABLE OF AUTHORITIES..........................................iii
`
`PRELIMINARY STATEMENT...........................................1
`
`PROCEDURAL HISTORY..............................................4
`
`STATEMENT OF FACTS..............................................6
`
`A. Liability Trial ..........................................6
`
`Introduction of The Parties and Background of
`the Incident .............................................6
`
`The Fire Escape ..........................................7
`
`Plaintiff-Respondent Richard Dougherty Trial
`Testimony ................................................8
`
`Jeffrey Mann (Building Manager) .........................10
`
`Robert Fuchs Plaintiff-Respondent’s Engineering
`Expert ..................................................11
`
`Eric Mann, Owner of 359 Lewis Avenue ....................13
`
`Tosha Johnson EMT .......................................13
`
`Jeffrey Schwalje, Defendant-Appellant’s Expert ..........14
`
`Verdict .................................................15
`
`B. The CPLR 4404(a) Motion .................................16
`
`Plaintiff-Respondent’s Motion ...........................16
`
`Defendant-Appellant’s Opposition ........................16
`
`Plaintiff-Respondent’s Reply to Defendant-
`Appellant’s Opposition ..................................17
`
`The Trial Court’s Decision ..............................18
`
`QUESTION PRESENTED.............................................19
`
`
`
`
`
`
`i
`
`
`
`ARGUMENT.......................................................20
`
`THE VERDICT WAS PROPERLY SET ASIDE .........................20
`
`PLAINTIFF CANNOT BE THE SOLE PROXIMATE CAUSE OF
`
`FALLING INTO AN UNGUARDED HOLE ON THE FIRE ESCAPE ..........24
`
`THERE WAS EVIDENCE THAT THE PLAINTIFF FELL THROUGH
`THE HOLE ON THE FIRE ESCAPE REGARDLESS OF THE
`PLAINTIFF’S TESTIMONY ......................................28
`
`THE COURT DID NOT DEEM DEFENDANT’S STATEMENTS
`TO BE A CONCESSION .........................................32
`
`CONCLUSION.....................................................33
`
`PRINTING SPECIFICATIONS STATEMENT..............................34
`
`
`
`ii
`
`
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`
`Ahmed v. Port Auth. Of N.Y. & N.J.,
`131 A.D.3d 493, 14 N.Y.S.3d 501
`(Dep’t 2nd, 2015) ...........................................20
`
`Batista v. Bogopa Serv. Corp.,
`121 A.D.3d 828, 994 N.Y.S.2d 648
`(Dep’t 2nd, 2014) ...........................................16
`
`Bendersky v. M&O Enters. Corp.,
`299 A.D.2d 434, 751 N.Y.S.2d 269
`(Dep’t 2nd, 2002) ...................................20, 21, 22
`
`Brecht v. Copper Sands,
`237 A.D.2d 907, 654 N.Y.S.2d 520
`(Dep’t 4th, 1997) .......................................27, 28
`
`Bucich v. City of New York,
`111 A.D.2d 646, 490 N.Y.S.2d 208
`(Dep’t 1st, 1985) .......................................27, 28
`
`Dellamonica v. Carvel Corp.,
`1 A.D.3d 311. 766 N.Y.S.2d 854
`(Dep’t 2nd, 2003) ...................................20, 21, 22
`
`Gaudiello v. City of New York,
`80 A.D.3d 726, 916 N.Y.S.2d 606
`(Dep’t 2nd, 2011) ...............................20, 21, 22, 28
`
`Schermerhorn v. Warfield,
`213 A.D.2d 877 (3rd Dep’t, 1995) ........................24, 25
`
`Skibinski v. Salvation Army,
`307 A.D.2d 427 (Dep’t 3rd, 2003) ....................22, 27, 28
`
`Soto v. New York City Tr. Auth.,
`6 N.Y.3d 487 (2006) .....................................25, 26
`
`Statutes
`
`CPLR § 2214(c)7................................................16
`
`CPLR § 4404(a).................................................16
`
`
`
`iii
`
`
`
`
`
`PRELIMINARY STATEMENT
`
`
`
`Plaintiff-Respondent
`
`Richard
`
`Dougherty
`
`(“plaintiff-
`
`respondent”) submits this brief in connection with the appeal taken
`
`by defendant-appellant 359 Lewis Avenue Associates, LLC
`
`(“defendant-appellant”) from the order of the Supreme Court, Kings
`
`County, dated March 24, 2023, which granted the motion to set aside
`
`the verdict.
`
`
`
`As shall be demonstrated infra, the plaintiff-respondent was
`
`performing a property condition assessment on the defendant-
`
`appellant’s apartment building. The fire escape attached to the
`
`building was in a dangerous condition because it failed to have a
`
`guardrail around the stairway opening in the platform of the
`
`fourth-floor fire escape. Mr. Dougherty was caused to fall through
`
`the stairway opening in the fire escape when he attempted to
`
`traverse the fire escape during his assessment.
`
`At trial, the jury found the defendant-appellant negligent in
`
`having an unguarded fire escape on its premises but found that the
`
`defendant-appellant’s negligence was not a proximate cause of Mr.
`
`Dougherty’s fall.
`
`
`
`
`
`As defendant-appellant’s negligence in failing to have a
`
`guardrail was inextricably interwoven with causing plaintiff-
`
`respondent’s fall, the trial court held that the defendant-
`
`appellant’s fire escape’s “condition cannot be disregarded,
`
`irrespective of the conduct of plaintiff as described by defendant.
`
`1
`
`
`
`
`
`The condition is not minor or trivial to the occurrence. The court
`
`finds that the two are inextricably woven.” This court should
`
`affirm the trial court’s decision that the verdict was against the
`
`weight of the evidence.
`
`
`
`On appeal, despite the fact that a guardrail would have
`
`stopped plaintiff-respondent from falling into the hole in the
`
`fire escape, defendant-appellant contends that “there is a
`
`reasonable view of the evidence according to which plaintiff’s
`
`failure to look down at any point while inspecting the fire escape
`
`was the sole proximate cause of his accident.” (Defendant Appellate
`
`Brief, Page 27). As noted by the trial court in its decision on
`
`the underlying motion, “[t]he question of whether the Plaintiff
`
`was aware that the opening was unguarded while he was on the roof
`
`before he descended to the landing and the fact that he
`
`acknowledged that he did not look down while he was on the landing
`
`does not serve to support the uncoupling of negligence and
`
`causation. It only serves to raise an issue of comparative fault.”
`
`
`
`
`
`
`
`Defendant-Appellant next contends that the jury could have
`
`found the plaintiff-respondent’s testimony to be incredible and
`
`thrown it out in its entirety. In that scenario, defendant argues
`
`that there wouldn’t be any evidence that plaintiff fell through
`
`the unguarded opening. This argument is also flawed, as there is
`
`no evidence that plaintiff-respondent willfully testified falsely
`
`2
`
`
`
`
`
`about any important matter. Further, even if Mr. Dougherty’s
`
`testimony was not considered by the jury, the evidence in the case
`
`still supported a finding that he fell through the opening in the
`
`fourth floor platform of the fire escape at defendant-appellant’s
`
`premises.
`
`
`
`Finally, defendant-appellant contends that the trial court
`
`took defense counsel’s statements in summation that plaintiff fell
`
`through the unguarded opening as a concession. In reviewing the
`
`trial court’s decision on the post-trial motion, the trial court
`
`did not take the summation statement to be a concession, but rather
`
`the court found that plaintiff fell through the unguarded opening
`
`based on the evidence at trial.
`
`
`
`
`
`As such, the decision of the trial court should be affirmed.
`
`
`
`3
`
`
`
`
`
`
`
`
`PROCEDURAL HISTORY
`
`The instant action was commenced via the filing of a Summons
`
`and Complaint on September 9, 2016. (28-33). Thereafter, issue was
`
`joined by the filing of an Answer on December 7, 2016. (34-38).
`
`Verified Bills of Particulars were served upon the answering
`
`defendant-appellant on January 27, 2017. (39-51).
`
`
`
`Defendant-appellant filed a motion for summary judgment on
`
`December 21, 2018. Plaintiff-respondent responded on March 6,
`
`2019. The court ruled in favor of the plaintiff-respondent and
`
`filed their decision on April 4, 2019.
`
`
`
`A liability trial in this matter commenced on April 18, 2022,
`
`and resulted in a jury verdict rendered on April 22, 2022. The
`
`jury unanimously found the defendant-appellant negligent for
`
`failing to have a guardrail around the stairway opening on the
`
`fire escape attached to its premises. However, the jury determined
`
`that the defendant-appellant’s negligence was not a substantial
`
`factor in causing the plaintiff-respondent’s fall.
`
`Therefore, on May 20, 2022, plaintiff-respondent moved to set
`
`aside the verdict as against the weight of the evidence, arguing
`
`that “the issues of negligence and proximate cause were
`
`inextricably interwoven” and, therefore it was logically
`
`impossible for the jury to hold the defendant-appellant’s
`
`negligence was not the proximate cause of plaintiff-respondent’s
`
`incident. (R. 10).
`
`4
`
`
`
`
`
`On March 24, 2023, the trial court held that the fire escape’s
`
`“condition cannot be disregarded, irrespective of the conduct of
`
`plaintiff-respondent as described by defendant-appellant. The
`
`condition is not minor or trivial to the occurrence. The court
`
`finds that the two are inextricably woven.” (R. 10). As a result,
`
`the trial court set aside the jury’s verdict and ordered a retrial.
`
`Id. Defendant-appellant now appeals the March 24, 2023, order
`
`setting aside the jury’s verdict.
`
`
`
`
`
`5
`
`
`
`
`
`STATEMENT OF FACTS
`
`
`A. Liability Trial
`
`Introduction of The Parties and Background of the Incident
`
`
`In 2014, plaintiff-respondent, Mr. Richard Dougherty, began
`
`working for CBRE as a project manager. (R. 119). In that role, Mr.
`
`Dougherty would perform property condition assessments and create
`
`a property condition report. (R. 115-117, 118-119). Defendant-
`
`appellant, 359 Lewis Avenue Associates, LLC owned a four-story
`
`apartment building at 359 Lewis Avenue in Brooklyn, New York. (R.
`
`228).
`
`The incident arose at 359 Lewis Avenue in Brooklyn, New York,
`
`on March 18, 2016. (R. 121, 173-174). On that date, plaintiff-
`
`respondent performed a property condition assessment of defendant-
`
`appellant’s apartment building, which included an inspection of
`
`the fire escape on the rear portion of the building. (R. 121, 173-
`
`174, 229-230). The stairway was unguarded on the fourth floor of
`
`the fire escape, in that there was not a guardrail surrounding the
`
`opening. (R. 158). A photograph of the subject fire escape can be
`
`found on page 577 of the Record on Appeal. Plaintiff-respondent
`
`was on the fourth floor of the fire escape performing his
`
`assessment when he stepped into the unguarded opening, causing him
`
`to fall through the hole, landing on the third-floor platform, and
`
`sustaining injuries. (R. 159).
`
`
`
`
`
`6
`
`
`
`
`
`The Fire Escape
`
`The fire escape is over 115 years old. (R. 274, 434). There was
`
`no indication that there were changes or alterations performed on
`
`the fire escape since it was built. (R. 275). The fire escape is
`
`four stories high and bracketed to the rear of the building. (R.
`
`269, 528). There was an unguarded opening on the fourth floor
`
`platform of the fires escape that measured 68 inches by 23 inches.
`
`(R. 427).
`
`The fire escape was 3’2 deep and 13’6 ¾ wide and had 1 ¾ inch
`
`floor slats spaced one inch apart. (R. 270-273). From the outer
`
`guardrail to the inner edge of the stair opening, it measured 20
`
`½ inches. Id. On the front right corner of the fourth-floor fire
`
`escape was a ladder, and in the rear left corner was a staircase
`
`leading to the third floor. (R. 158, 582). The ladder provides
`
`access to the roof, and from the corner of the ladder to the corner
`
`of the staircase opening, it measured 27 5/8. Id. From the edge of
`
`the unguarded opening to the outside of the perimeter guardrail,
`
`it was approximately 47 inches wide. (R. 289). As of March 18,
`
`2016, defendant-appellant’s property manager, who oversaw
`
`repairing unsafe conditions on the defendant-appellant’s fire
`
`escape, admitted that he had never stepped foot on the fire escape.
`
`(R. 225-226, 230).
`
`
`
`
`
`7
`
`
`
`
`
`Plaintiff-Respondent Richard Dougherty Trial Testimony
`
`Plaintiff-respondent testified that he performed property
`
`condition assessments, including a walkthrough of the building,
`
`photographed unsafe areas, and created a property condition
`
`report. (R. 118-119). A property condition report includes a
`
`general description of the building, its location, how the building
`
`was constructed, its surroundings, ranking or grading of its
`
`condition, and a repair sheet. (R. 118-119). During property
`
`assessments, plaintiff-respondent would bring several pieces of
`
`equipment such as a tape recorder, crowbar, camera, level, ladder,
`
`clipboard, and slip-resistant boots. (R. 116, 124). By March 18,
`
`2016, plaintiff-respondent had performed roughly 300 property
`
`assessments, around 30 of which involved the inspection of a fire
`
`escape. (R. 120, 187-188).
`
`On March 18, 2016, plaintiff-respondent arrived at 359 Lewis
`
`Avenue in Brooklyn, New York, to perform a property condition
`
`assessment. (R. 127). Upon arrival, Mr. Dougherty met the following
`
`people for the first time, Ms. Elda Pomales, a fellow CBRE
`
`employee, Mr. Jeffrey Mann, the building property manager, and Mr.
`
`Victor Mirino, an appraiser. (R. 123-124, 127). Ms. Pomales and
`
`Mr. Mann accompanied Mr. Dougherty throughout the assessment. (R.
`
`128). At 10:00 a.m., Mr. Dougherty began in the front
`
`lobby/stairway right near the foyer and proceeded to work his way
`
`to the roof of the building. Id.
`
`8
`
`
`
`
`
`Mr. Dougherty proceeded to the roof with Mr. Mann and Ms. Elda
`
`Pomales between 11:30 a.m. and 11:45 a.m. (R. 128). After assessing
`
`the roof, Mr. Dougherty used a gooseneck ladder that dropped
`
`approximately ten feet from the roof to the fourth-floor fire
`
`escape platform. (R. 129-130, 154). Once Mr. Dougherty got on the
`
`fire escape, he looked at a window next to the ladder. Id. Mr.
`
`Dougherty testified that he was assessing the window because it
`
`was “standard procedure [and] wanted to see what the aluminum foil
`
`wrap was like around the window trim and just see if the caulking
`
`was new or old and cracked.” (R. 155). After assessing the window
`
`for a few seconds, Mr. Dougherty intended on moving across the
`
`fire escape to the other end. Id. However, when he turned to take
`
`a step forward, his left foot went into the unguarded stairway
`
`opening on the fire escape platform. (R. 155-156, 159-160).
`
`After stepping into the hole, he tilted to the left and fell
`
`through the unguarded opening, head and shoulders first, from the
`
`fourth-floor fire escape platform to the third-floor fire escape
`
`platform. (129-130, 159). Mr. Dougherty stated that he called for
`
`help twice before Mr. Mann and Ms. Pomales heard him and called
`
`medical services. (R. 167). He was assisted by two Emergency
`
`Medical Technicians and transported via ambulance to Woodhull
`
`Hospital for further treatment. (R. 201).
`
`
`
`
`
`9
`
`
`
`
`
`Jeffrey Mann (Building Manager)
`
`Mr. Jeffrey Mann testified that L. Rose Realty is a property
`
`management company owned by his brother, Eric Mann. (R. 223). He
`
`further testified that on March 18, 2016, he was employed by L.
`
`Rose Realty as a property manager. (R. 222). However, Mr. Mann
`
`admitted that before March 2016, he had no experience in the real
`
`estate industry. (R. 223). Additionally, Mr. Mann stated that he
`
`had only been a property manager for a couple of days before Mr.
`
`Dougherty’s incident. (R. 222-223). Mr. Mann testified that his
`
`duties as a property manager included ensuring repairs were made,
`
`cleaning the building, and resolving problems with tenants. (R.
`
`225).
`
`Mr. Mann further testified that L. Rose Realty provided
`
`management services to an apartment building located at 359 Lewis
`
`Avenue. Id. This building was owned by 359 Lewis Avenue Associates
`
`LLC, a company of which Eric Mann was the owner. (R. 229). Mr.
`
`Mann testified that he visited 359 Lewis Avenue twice a week to
`
`conduct a walkthrough of the building, including the roof and
`
`stairways. (R. 226). However, Mr. Mann stated that he was never on
`
`the fire escape at 359 Lewis Avenue. (R. 230).
`
`Mr. Mann testified that he recalled standing with Ms. Pomales
`
`about ten feet from the roof’s edge when Mr. Dougherty walked over
`
`to the gooseneck ladder and climbed to the fire escape. (R. 234-
`
`235). Mr. Mann admitted that he could not see Mr. Dougherty once
`
`10
`
`
`
`
`
`he began to go down the ladder. Id. Shortly after Mr. Dougherty
`
`climbed down, Mr. Mann heard him yell. (R. 235-236). He then
`
`approached the roof and looked down over the parapet toward the
`
`fire escape. (R. 236-238). Upon doing so, he saw Mr. Dougherty
`
`lying down or in a half-seated position on the third-floor landing
`
`of the fire escape. (R. 237). Mr. Mann admitted that he could not
`
`see Mr. Dougherty when he fell. Id. After seeing Mr. Dougherty
`
`yelling out on the third-floor fire escape, Mr. Mann called for
`
`help and went downstairs to wait for their arrival. Id. Mr. Mann
`
`did not go on the fire escape on March 18, 2016. Id.
`
`Robert Fuchs Plaintiff-Respondent’s Engineering Expert
`
`Robert Fuchs testified as an expert in the field of engineering.
`
`Mr. Fuchs is a professional engineer holding licenses in New York,
`
`Pennsylvania, and Florida. (R. 260-261). Mr. Fuchs is certified in
`
`forensic engineering, a board-certified fire and explosion
`
`investigator, and a certified safety professional. (R. 262-263).
`
`As a professional engineer, Mr. Fuchs’ duties include performing
`
`site inspections relating to failures, accident investigations
`
`with site inspections to design projects, reviewing legal
`
`documents, preparing engineering reports, reviewing building code
`
`strip standards, and consulting with contractors, architects, and
`
`other design professionals. (R. 265). Mr. Fuchs also examined
`
`ongoing construction work for code compliance and safety issues.
`
`Id.
`
`11
`
`
`
`
`
`Mr. Fuchs further testified that he has performed over 3,500
`
`inspections as an engineer, including inspections of fire escapes.
`
`(R. 276). Mr. Fuchs testified that he has experience designing
`
`fire escapes and inspecting fire escapes in response to accidents,
`
`building failures, and fires. Id. He further stated that on July
`
`25, 2017, he inspected the fourth-floor landing of the fire escape
`
`at 359 Lewis Avenue in Brooklyn. (R. 268-270). Based on his
`
`inspection and review of the evidence in the case, Mr. Fuchs opined
`
`that the subject fire escape departed from good custom and
`
`engineering practice on March 18, 2016, because the unguarded
`
`condition of the stairway opening provided an inherent fall hazard.
`
`(R. 277). Mr. Fuchs testified that the fire escape was inherently
`
`unsafe because openings that are horizontal, flush, and on the
`
`floor are not readily perceivable to humans because we are
`
`naturally outward-looking, and if someone slips, trips, falls, or
`
`has a misstep, there is no protection or safeguard to prevent
`
`someone from falling through the opening. (R. 278). Additionally,
`
`defendant-appellant’s fire escape was very narrow between the rear
`
`of the building and the inner edge of the stairway, which
`
`“increases the risk for a fall through [an] open and unprotected
`
`stairwell opening.” Id.
`
`Mr. Fuchs stated that a “guardrail would have protected and
`
`provided a safeguard against the open condition … such that a
`
`person could not fall through it.” (R. 280). Mr. Fuchs opined that
`
`12
`
`
`
`
`
`the lack of a guardrail caused Mr. Dougherty’s fall and that it
`
`was “absolutely” possible for the defendant-appellant to build a
`
`guardrail on the fourth floor of the fire escape around the
`
`opening. (R. 279). He further testified that the root cause of Mr.
`
`Dougherty’s fall on March 18, 2016, was the absence of a railing
`
`or guard around the stairwell opening. (R. 280, 337). He concluded,
`
`with a reasonable degree of engineering certainty, that a guardrail
`
`would have absolutely prevented Mr. Dougherty from falling to the
`
`third floor. Id.
`
`Eric Mann, Owner of 359 Lewis Avenue
`
`On April 21, 2022, portions of Mr. Eric Mann’s deposition
`
`testimony were read to the jury due to his inability to be present
`
`for the trial. (R. 109). Mr. Eric Mann explained that from the
`
`time he purchased the subject premises up until the day of the
`
`incident, there was never any work performed on the fire escape at
`
`359 Lewis Avenue. (R. 20). Mr. Eric Mann believed the fire escape
`
`was safe because it was code compliant. (R. 523). In addition, Mr.
`
`Eric Mann explained that he had personally viewed the fire escape
`
`prior to the day of Mr. Dougherty’s incident. (R. 20).
`
`Tosha Johnson EMT
`
`Ms. Tosha Johnson testified that she is employed by the Fire
`
`Department of New York City as an emergency medical technician
`
`(EMT). (R. 374). As an EMT, Ms. Johnson’s duties include providing
`
`basic medical support for pre-hospital care to patients if there
`
`13
`
`
`
`
`
`are critical issues or injuries. (R. 374). Additionally, Ms.
`
`Johnson prepares pre-hospital care reports, which include vital
`
`sign information as well as injuries or other information reported
`
`by the patient. (R. 374, 376-377).
`
`Ms. Johnson testified that she did not remember treating Mr.
`
`Dougherty on the fire escape, and her recollection of that day was
`
`vague. (R. 378). She further testified that her only independent
`
`memory of the incident was that Mr. Dougherty was on a fire escape.
`
`Id. Ms. Johnson did prepare a pre-hospital care report relating to
`
`Mr. Dougherty’s accident. (R. 376-377). Ms. Johnson testified
`
`that, per her EMT report, Mr. Dougherty fell down a flight of
`
`stairs while inspecting a fire escape. (R. 381). Additionally, as
`
`a result of the fall, Mr. Dougherty dislocated his left shoulder
`
`and sustained a laceration on the left side of his head. (Id.,
`
`383-384). Mr. Dougherty’s laceration caused there to be blood all
`
`over the scene. Id.
`
`Jeffrey Schwalje, Defendant-Appellant’s Expert
`
`Jeffrey Schwalje appeared as an expert for the defendant-
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`appellant. Mr. Schwalje is a licensed professional engineer and
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`founding member of Affiliated Engineering Laboratories. (R. 418).
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`Mr. Schwalje testified that as a licensed professional engineer,
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`he conducts forensic analyses and testifies in trials three to
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`four times a year regarding different fields of engineering.
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`(Id., 461). Mr. Schwalje testified that he is currently not
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`14
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`
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`certified as a safety professional or a fire and explosive
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`investigator. (R. 456). Additionally, he has never been board
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`certified as a fire safety investigator. (R. 474-475). Mr.
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`Schwalje also testified that he currently is not a licensed fire
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`code official or fire inspector. Id.
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`Mr. Schwalje further testified that on July 6, 2017, he visited
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`359 Lewis Avenue, Brooklyn, New York, for a site inspection. (R.
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`421). He agreed that the possibility of people falling in the
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`unguarded hole would be reduced if a guardrail was installed. (R.
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`459). In fact, Mr. Schwalje admitted, “that any time you guard an
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`opening, it is safer than if it is not guarded.” (R. 446). He
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`further stated that the fire escape opening, as it existed on March
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`18, 2016, could have been safeguarded without taking away from its
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`intended use if a correctly constructed guardrail had been
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`installed along the stairway opening. (R. 456). Furthermore, he
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`testified that there was no practical reason why a guardrail could
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`not be installed on defendant-appellant’s fire escape. (R. 446).
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`Verdict
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`The jury unanimously found the defendant-appellant negligent,
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`but its negligence was not a proximate cause of plaintiff-
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`respondent’s fall.
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`15
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`B. The CPLR 4404(a) Motion
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`Plaintiff-Respondent’s Motion
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`On May 20, 2022, plaintiff-respondent moved to set aside the
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`verdict and for a new trial according to CPLR 4404(a). (R. 12-13).
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`In Batista, the court held that when the issues of negligence and
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`proximate cause “are so inextricably interwoven as to make it
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`logically impossible to find negligence without also finding
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`proximate cause,” the verdict is inconsistent and against the
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`weight of the evidence. Batista v. Bogopa Serv. Corp.,121 A.D.3d
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`828, 994 N.Y.S.2d 648 (Dep’t 2nd, 2014); (R. 23).
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`Plaintiff-respondent argued that Mr. Dougherty’s sole claim of
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`negligence against the defendant-appellant was that they
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`maintained a fire escape in a dangerous condition by failing to
`
`install a guardrail around the stairwell opening. (R. 26). Notably,
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`it is undisputed that Mr. Dougherty stepped into an unguarded hole
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`on the fire escape which caused him to fall to the third floor.
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`Id. The only logical inference that can be drawn from this evidence
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`is that Mr. Dougherty’s accident would not have occurred if a
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`guardrail had been around the stairwell opening. Id.
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`Defendant-Appellant’s Opposition
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`The defendant-appellant opposed plaintiff-respondent’s motion
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`with several arguments. First, the defendant-appellant claimed,
`
`pursuant to CPLR 2214(c)7, plaintiff-respondent’s motion was
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`procedurally defective because the entire trial transcript was not
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`16
`
`
`
`
`
`annexed to the motion. (R. 583). Second, plaintiff-respondent
`
`waived his inconsistent verdict claim because it was brought after
`
`the jury was discharged. Id. Lastly, a reasonable view of the
`
`evidence supports the jury’s finding of negligence but no proximate
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`cause. Id. The defense focused on Mr. Dougherty’s conduct and
`
`asserted that the only substantial factor causing Mr. Dougherty’s
`
`fall was his admitted failure to look where he was going. (R. 589).
`
`Plaintiff-Respondent’s Reply to Defendant-Appellant’s Opposition
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`In reply, plaintiff-respondent asserted their motion was not
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`procedurally defective because nothing within the CPLR or in New
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`York case law requires a party to attach the entire trial
`
`transcript. (R. 605).
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`Next, plaintiff-respondent had not made a motion for an
`
`inconsistent verdict and instead brought a post-trial motion to
`
`set aside the evidence as against the weight of the evidence. (R.
`
`603-604). As such, there was no requirement in the Second
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`Department that a plaintiff-respondent must raise this kind of
`
`motion prior to the jury being discharged. Id.
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`Finally, the issue of negligence and proximate cause are
`
`inextricably interwoven. (R. 602). If there had been a guardrail
`
`present on March 18, 2016, Mr. Dougherty would not have been able
`
`to fall through the opening. Id. Additionally, the defense
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`“conceded during trial that Mr. Dougherty stepped into the stairway
`
`opening and fell.” (R. 600-602). As such, the defense’s claim that
`
`17
`
`
`
`
`
`Mr. Dougherty slipped and fell is immaterial and not supported by
`
`the evidence presented at trial. Id.
`
`The Trial Court’s Decision
`
`On March 24, 2023, the trial court granted plaintiff-
`
`respondent’s motion to set aside the jury’s verdict and ordered a
`
`new trial. (R. 11). The court made it clear that the primary issue
`
`to be decided “is whether the jury’s determination that the
`
`unguarded opening was unsafe can be divorced from whether the
`
`condition caused the fall.” (R. 10). The court held that it cannot
`
`be because the fire escapes condition was not “minor or trivial to
`
`the occurrence.” Id. The court found that the plaintiff-
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`respondent’s failure to see an open and obvious condition goes to
`
`comparative negligence and does not absolve the defendant-
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`appellant’s liability. (R. 11).
`
`
`
`
`
`18
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`
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`
`
`QUESTION PRESENTED
`
`(1)
`
`Did the trial court err in setting aside the jury’s
`
`verdict and ordering a new trial?
`
`SHORT ANSWER
`
`(1)
`
`It is respectfully submitted that the answer to this
`
`question is “no.”
`
`
`
`19
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`
`
`
`
`ARGUMENT
`
`THE VERDICT WAS PROPERLY SET ASIDE
`
`
`
`In our present case, plaintiff-respondent’s only claim
`
`against the defendant-appellant was that they were negligent in
`
`failing to have a guardrail around the stairway opening on the
`
`building’s fire escape and therefore allowed the plaintiff to fall
`
`through the opening. As a result of the issues of negligence and
`
`proximate cause being “inextricably interwoven,” the jury’s
`
`finding of negligence and finding that the negligence was not a
`
`proximate cause is logically impossible and required the verdict
`
`to be set aside. See Ahmed v. Port Auth. Of N.Y. & N.J., 131 A.D.3d
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`493, 14 N.Y.S.3d 501 (Dep’t 2nd, 2015); Dellamonica v. Carvel
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`Corp., 1 A.D.3d 311, 312. 766 N.Y.S.2d 854 (Dep’t 2nd, 2003);
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`Bendersky v. M&O Enters. Corp., 299 A.D.2d 434, 751 N.Y.S.2d 269
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`(Dep’t 2nd, 2002); Gaudiello v. City of New York, 80 A.D.3d 726,
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`916 N.Y.S.2d 606 (Dep’t 2nd, 2011).
`
`
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`In Dellamonica, the plaintiff claimed that she was injured
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`when she tripped over a milk crate that an employee of the
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`defendant had used to prop open an entry door to defendant’s
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`premises. Dellamonica, 766 N.Y.S.2d at 854. In that case, the jury
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`found that the defendants were negligent but found that their
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`negligence was not a proximate cause of the accident. Id. The
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`Second Department held that the verdict was “unsupported by a fair
`
`20
`
`
`
`
`
`interpretation of the evidence.” Id. As a result, the court set
`
`aside the verdict and ordered a new trial. Id.
`
`
`
`In Bendersky, the plaintiff was injured when she allegedly
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`slipped and fell inside the defendant’s premises. Bendersky, 299
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`N.Y.S.2d at 434. The plaintiff testified that she slipped in an
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`area of the store where she had previously seen a security guard
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`cleaning up a cup of soda that had spilled on the floor. Id. at
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`435. In addition, she testified that she felt a “wet sticky”
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`substance on her back and hands after she fell. Id. The jury found
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`the defendant negligent but that the negligence was not a
`
`substantial factor in causing the accident. Id. The Second
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`Department determined that “the jury could not have found that the
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`defendant’s negligence in failing to adequately clean the spill
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`was not a substantial factor in causing the accident on any fair
`
`interpretation of the evidence.” The court ordered the verdict to
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`be set aside and granted a new trial. Id.
`
`
`
`In Gaudiello, the plaintiff testified that she was injured
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`when she tripped and fell over a defect in the sidewalk abutting
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`the defendant’s premises. Gaudiello, 916 N.Y.S.2d at 726. The jury
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`found the defendants negligent, but that the negligence was not a
`
`proximate cause of the accident. The Second Department held that
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`the “defendants failed to submit any evidence to refute the
`
`plaintiff’s testimony” that she tripped on a sidewalk defect. Id.
`
`21
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`
`
`
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`at 727. The court concluded that plaintiff’s motion to set aside
`
`should have been granted by the lower court. Id. at 734.
`
`In Skibinski, the plaintiff and her boyfriend parked their car
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`in the rear portion of defendant’s parking lot; plaintiff’s
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`boyfriend identified black ice around the vehicle and exercised
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`caution. Skibinski v. Salvation Army, 307 A.D.2d 427, 427 (Dep’t
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`3rd, 2003). However, plaintiff did not notice the ice and fell as
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`soon as she stepped outside of her vehicle. Id. The jury found the
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`defendant to be negligent for the ice in the parking lot as it
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`“created an unsafe condition.” Id. However, the jury found the
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`condition not to be a substantial cause of the plaintiff’s fall.
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`Id. The Third Department held, “but for the dangerous condition,
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`plaintiff would not have fallen, and the jury’s findings to the
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`contrary are irreconcilably inconsistent.” Id. at. 428. The court
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`concluded that “[d]ue to the inextricably interwoven nature of the
`
`issues here, the jury’s verdict was inconsistent and must be
`
`vacated.” Id.
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`As in Dellamonica, Bendersky, Gaudiello and Skibinski, here,
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`the facts of the case are such that negligence and causation are
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`“inextricably interwoven.” Mr. Dougherty testified that he was
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`caused to fall through the stairway opening in the subject's fire
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`escape when he attempted to traverse the f
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