The Second Department reversed Supreme Court’s setting aside the verdict in this personal injury action brought by a firefighter pursuant to General Municipal Law 205-a and Labor Law 27-a. The firefighter alleged he tripped over a torn rug in the fire department office. The torn rug violated provisions of the NYC Administrative Code. The Second Department took great pains to explain the criteria for setting aside a verdict as a matter of law and as against the weight of the evidence pursuant to CPLR 4404:
Although there were no other individuals present when the plaintiff fell, his supervisor immediately responded to “the loud bang” that resulted from the accident. The plaintiff’s supervisor prepared a report that morning, which stated that the plaintiff had tripped on a piece of loose rug. Another one of the plaintiff’s supervisors testified that he responded to the location of the accident and observed “a ripped carpet there.” Photographs of the tear in the carpet that caused the plaintiff to fall were admitted into evidence and identified by the plaintiff’s witnesses. * * *
The plaintiff testified that at the time of the accident, he felt a “popping in [his] leg.” A doctor who examined the plaintiff after the accident, Leonard Harrison, testified that the plaintiff tore his hamstring as the result of the subject accident.
The City did not present any evidence to show that the plaintiff’s accident was caused by something other than the tear in the carpet, or that the accident did not occur at all. Although the jury was not required, as a matter of law, to credit the plaintiff’s uncontradicted testimony … the City’s efforts to impeach the plaintiff as to the cause of the accident were particularly weak. * * *
Despite the City’s attacks, the plaintiff’s testimony as to the cause of the accident was consistent throughout the course of the trial. Moreover, his testimony regarding the cause of the accident was consistent with the testimony he gave at his deposition, in which he repeatedly testified that “[his] foot got caught on a piece of torn rug, where [he] los[t] [his] balance and tripped.” The plaintiff’s trial testimony was also consistent with the reports he gave to his supervisor and to doctors shortly after the accident occurred.
On this record, any conclusion that the plaintiff’s accident was the result of some other unidentified cause, or that the entire incident was fabricated, could only be based upon mere speculation … . Annunziata v City of New York, 2019 NY Slip Op 06055, Second Dept 8-7-19