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PLAINTIFF’S MOTION TO SET ASIDE THE DEFENSE VERDICT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court’s denial of plaintiff’s motion to set aside the defense verdict and ordering a new trial in this slip and fall case, determined the defense verdict was against the weight of the evidence:

“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 on 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, as here, “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” … .

Under the circumstances of this case, the Supreme Court should have granted that branch of the plaintiffs’ motion which was, in effect, to set aside the jury verdict as contrary to the weight of the evidence, as the finding that the defendants’ negligence was not a proximate cause of the accident was not supported by a fair interpretation of the evidence … . The infant plaintiff testified that she slipped on a step that was cracked, sloped down, and uneven. That testimony was consistent with the testimony of the plaintiffs’ expert engineer. The defendants failed to adduce any evidence to refute the testimony of the infant plaintiff and the plaintiffs’ expert witness. Middleton v New York City Tr. Auth., 2021 NY Slip Op 06613, Second Dept 11-24-21

 

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