The Second Department, over a dissent, set aside a verdict in a slip and fall case which found that the defendant’s (City of New York’s) negligence was not the proximate cause of the fall. Plaintiff fell on a portion of sidewalk which “was all patched” and which had “a hole in it.” The court explained:
A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence … . 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 … . Where a jury verdict with respect to negligence and proximate causation is irreconcilably inconsistent, that verdict must be set aside as contrary to the weight of the evidence … .
Contrary to the contention of the defendant City of New York, the plaintiff sufficiently identified the sidewalk defect which allegedly caused her fall … . Under the circumstances of this case, for the jury to find the City negligent for failing to repair a sidewalk defect while on notice of its existence, yet to find that this negligence was not a proximate cause of the plaintiff’s injuries, was contrary to the weight of the evidence and irreconcilably inconsistent… . Wallace v City of New York, 2013 NY Slip Op 05523, 2nd Dept 7-31-13