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NO EVIDENCE DEFENDANT EXPRESSLY WAIVED HIS RIGHT TO BE PRESENT AT RESENTENCING, WAIVER BY COUNSEL NOT SUFFICIENT.

The Court of Appeals determined there was insufficient evidence demonstrating defendant waived his right to be present at his resentencing:

A defendant has the right to be present at all material stages of trial … , including sentencing (see CPL 380.40 [1]). We recently held that a defendant who has been convicted of a felony may waive his right to be present at sentencing, but must do so “expressly” … . The same principle applies in resentencing. The People do not contend otherwise, but insist that an inmate who wishes to waive his right to be present at resentencing should not be required to convey that waiver by personal appearance in court, and that defendant properly waived his right to be present by having his counsel speak on his behalf. Here, however, there is no record of any form of express waiver by defendant himself, whether oral or in writing, and, thus, the issue raised by the People is not presented. Nor in this case can waiver or forfeiture of the right to be present be inferred from defendant’s actions or inaction … . Accordingly, defendant did not validly waive his right to be present. People v Stewart, 2016 NY Slip Op 08398, CtApp 12-15-16

CRIMINAL LAW (NO EVIDENCE DEFENDANT EXPRESSLY WAIVED HIS RIGHT TO BE PRESENT AT RESENTENCING, WAIVER BY COUNSEL NOT SUFFICIENT)/SENTENCING (NO EVIDENCE DEFENDANT EXPRESSLY WAIVED HIS RIGHT TO BE PRESENT AT RESENTENCING, WAIVER BY COUNSEL NOT SUFFICIENT)/WAIVER (CRIMINAL LAW, NO EVIDENCE DEFENDANT EXPRESSLY WAIVED HIS RIGHT TO BE PRESENT AT RESENTENCING, WAIVER BY COUNSEL NOT SUFFICIENT)

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ARCHITECTURAL PLANS BRIEFLY LEFT WITH THE TOWN PLANNER AND DISPLAYED AND DISCUSSED AT A MEETING OF THE PLANNING BOARD WERE RECORDS WITHIN THE MEANING OF THE PUBLIC OFFICERS LAW, PETITION SEEKING THE DOCUMENTS SHOULD NOT HAVE BEEN DISMISSED AND SANCTIONS FOR BRINGING THE PETITION SHOULD NOT HAVE BEEN IMPOSED.

The Second Department, in a full-fledged opinion by Justice Dickerson, reversing Supreme Court, determined shopping center development plans which were left for a few days with the town planner, and which were displayed and briefly discussed at a planning board meeting, were “records” within the meaning of the Public Officers Law (Freedom of Information Law). Therefore petitioner’s request for the documents was not frivolous and sanctions, her petition should not have been denied, and attorneys fees should not have been assessed against her:

The Court of Appeals has “required that FOIL be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government'” … . “The legislative purpose is mainly accomplished through the definitions of Agency’ and Record.’ . . . Record’ is broadly defined to include any information kept, held, filed, produced or reproduced by, with or for an agency . . . in any physical form whatsoever'” … . “[T]his very broad definition is not limited by the purpose for which a document was originated or the function to which it relates” … .

Here, it is undisputed that Camarda, the developer’s owner, left the subject architectural renderings in the possession of Williams, the Town Planner, for a number of days, and that Williams displayed the renderings at the meeting of the Planning Board … . Thus, the renderings were “kept” and “held” by an agency, and were “records” within the meaning of FOIL … Since the definition of “record” is not limited by the purpose for which a document was originated or the function to which it relates, the fact that Camarda did not formally submit the renderings as part of an application for approval of an amended site plan is irrelevant. Matter of Fanizzi v Planning Bd. of Patterson, 2016 NY Slip Op 08361, 2nd Dept 12-14-16

 

FREEDOM OF INFORMATION LAW (ARCHITECTURAL PLANS BRIEFLY LEFT WITH THE TOWN PLANNER AND DISPLAYED AND DISCUSSED AT A MEETING OF THE PLANNING BOARD WERE RECORDS WITHIN THE MEANING OF THE PUBLIC OFFICERS LAW, PETITION SEEKING THE DOCUMENTS SHOULD NOT HAVE BEEN DISMISSED AND SANCTIONS FOR BRINGING THE PETITION SHOULD NOT HAVE BEEN IMPOSED)/MUNICIPAL LAW (ARCHITECTURAL PLANS BRIEFLY LEFT WITH THE TOWN PLANNER AND DISPLAYED AND DISCUSSED AT A MEETING OF THE PLANNING BOARD WERE RECORDS WITHIN THE MEANING OF THE PUBLIC OFFICERS LAW, PETITION SEEKING THE DOCUMENTS SHOULD NOT HAVE BEEN DISMISSED AND SANCTIONS FOR BRINGING THE PETITION SHOULD NOT HAVE BEEN IMPOSED)/TOWN PLANNING BOARD (ARCHITECTURAL PLANS BRIEFLY LEFT WITH THE TOWN PLANNER AND DISPLAYED AND DISCUSSED AT A MEETING OF THE PLANNING BOARD WERE RECORDS WITHIN THE MEANING OF THE PUBLIC OFFICERS LAW, PETITION SEEKING THE DOCUMENTS SHOULD NOT HAVE BEEN DISMISSED AND SANCTIONS FOR BRINGING THE PETITION SHOULD NOT HAVE BEEN IMPOSED)

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MOTHER CAN NOT RECOVER FOR EMOTIONAL DISTRESS CAUSED BY IN UTERO INJURY WHEN THE BABY IS BORN ALIVE.

The Second Department determined mother could not recover for emotional distress based upon alleged in utero medical malpractice when the baby is born alive. Here the baby was born alive but not conscious and died eight days later:

When an infant who is injured by medical malpractice while in utero survives the pregnancy, the infant may seek damages for his or her injuries … . If the pregnant mother suffers an independent injury as a result of malpractice, she may commence suit to recover for her own personal injuries … . If the malpractice causes a stillbirth or miscarriage, the mother can recover for emotional injuries even without showing that she suffered an independent physical injury … . However, where, as here, the alleged medical malpractice causes in utero injury to a fetus that is born alive, the mother cannot recover damages for emotional harm … . Ward v Safajou, 2016 NY Slip Op 08394, 2nd Dept 12-14-16

NEGLIGENCE (MEDICAL MALPRACTICE, MOTHER CAN NOT RECOVER FOR EMOTIONAL DISTRESS CAUSED BY IN UTERO INJURY WHEN THE BABY IS BORN ALIVE)/MEDICAL MALPRACTICE (MOTHER CAN NOT RECOVER FOR EMOTIONAL DISTRESS CAUSED BY IN UTERO INJURY WHEN THE BABY IS BORN ALIVE)/IN UTERO INJURY (MEDICAL MALPRACTICE, MOTHER CAN NOT RECOVER FOR EMOTIONAL DISTRESS CAUSED BY IN UTERO INJURY WHEN THE BABY IS BORN ALIVE)/EMOTIONAL DISTRESS (MEDICAL MALPRACTICE, MOTHER CAN NOT RECOVER FOR EMOTIONAL DISTRESS CAUSED BY IN UTERO INJURY WHEN THE BABY IS BORN ALIVE)

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DESPITE THE CITY CODE PROVISION CREATING A NONDELEGABLE DUTY ON THE OWNER’S PART TO MAINTAIN AN ABUTTING SIDEWALK, THE TERMS OF THE LEASE RAISED A QUESTION OF FACT ABOUT THE TENANT’S LIABILITY [LIABILITY TO THIRD PARTIES ARISING FROM CONTRACT].

The Second Department determined plaintiffs raised a question of fact when the terms of the lease created a duty on the part of the tenant (the City here) to maintain the abutting sidewalk:

Administrative Code of the City of New York § 7-210 imposes a nondelegable duty on a property owner to maintain and repair the sidewalk abutting its property, and specifically imposes liability upon certain property owners for injuries resulting from a violation of the code provision (see Administrative Code § 7-210…).

As a general rule, the provisions of a lease obligating a tenant to repair the sidewalk do not impose on the tenant a duty to a third party … . This is in accordance with the principle that “a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party” … . However, the Court of Appeals has recognized that there are exceptions to this general rule and that there are situations in which a party who enters into a contract may be said to have assumed a duty of care to third parties

The lease, inter alia, required the City, at its sole cost and expense, to take good care of the sidewalk, and “make all repairs thereto, ordinary and extraordinary, foreseen and unforeseen.” It also provided that the former owner “shall have no responsibility and shall not be required to furnish any services, make any repairs or to perform any other maintenance work.” The plaintiffs’ submission of this evidence raised a triable issue of fact as to whether the City’s lease was comprehensive and exclusive as to sidewalk maintenance so as to entirely displace the former landowner’s duty to maintain the sidewalk … . Hsu v City of New York, 2016 NY Slip Op 08348, 2nd Dept 12-14-16

NEGLIGENCE (DESPITE THE CITY CODE PROVISION CREATING A NONDELEGABLE DUTY ON THE OWNER’S PART TO MAINTAIN AN ABUTTING SIDEWALK, THE TERMS OF THE LEASE RAISED A QUESTION OF FACT ABOUT THE TENANT’S LIABILITY [LIABILITY TO THIRD PARTIES ARISING FROM CONTRACT])/CONTRACT LAW (TORT LIABILITY TO THIRD PARTIES, DESPITE THE CITY CODE PROVISION CREATING A NONDELEGABLE DUTY ON THE OWNER’S PART TO MAINTAIN AN ABUTTING SIDEWALK, THE TERMS OF THE LEASE RAISED A QUESTION OF FACT ABOUT THE TENANT’S LIABILITY)/LANDLORD-TENANT (SLIP AND FALL, DESPITE THE CITY CODE PROVISION CREATING A NONDELEGABLE DUTY ON THE OWNER’S PART TO MAINTAIN AN ABUTTING SIDEWALK, THE TERMS OF THE LEASE RAISED A QUESTION OF FACT ABOUT THE TENANT’S LIABILITY [LIABILITY TO THIRD PARTIES ARISING FROM CONTRACT])/SLIP AND FALL (DESPITE THE CITY CODE PROVISION CREATING A NONDELEGABLE DUTY ON THE OWNER’S PART TO MAINTAIN AN ABUTTING SIDEWALK, THE TERMS OF THE LEASE RAISED A QUESTION OF FACT ABOUT THE TENANT’S LIABILITY [LIABILITY TO THIRD PARTIES ARISING FROM CONTRACT])/SIDEWALKS (DESPITE THE CITY CODE PROVISION CREATING A NONDELEGABLE DUTY ON THE OWNER’S PART TO MAINTAIN AN ABUTTING SIDEWALK, THE TERMS OF THE LEASE RAISED A QUESTION OF FACT ABOUT THE TENANT’S LIABILITY [LIABILITY TO THIRD PARTIES ARISING FROM CONTRACT])

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DEFENDANT’S CAR MERELY FURNISHED THE CONDITION FOR PLAINTIFF’S BICYCLE ACCIDENT, NOT A PROXIMATE CAUSE.

The Second Department, reversing Supreme Court, determined summary judgment should have been granted to defendant Brady in this bicycle-car collision case. Brady was parked parallel to Dunbar waiting for Dunbar to pull out of a parking space. Plaintiff rode her bicycle between the two cars and struck the door of the Dunbar car when Dunbar opened it to speak to Brady. Brady’s car was deemed not to be a proximate cause of the accident, rather the position of Brady’s car merely furnished the condition for the accident. Dunbar’s motion for summary judgment, however was properly denied:

The Supreme Court should have granted Brady’s motion for summary judgment dismissing the second supplemental complaint insofar as asserted against him. Although the issue of proximate cause is generally one for the jury … , “liability may not be imposed upon a party who merely furnished the condition or occasion for the occurrence of the event’ but was not one of its causes” … . Here, in support of his motion, Brady demonstrated his prima facie entitlement to judgment as a matter of law by presenting evidence that his conduct in stopping his car while waiting for a parking space merely furnished the condition or occasion for the accident, and was not a proximate cause of the plaintiff’s injuries … .

… Dunbar failed to eliminate all triable issues of fact as to whether Dunbar was negligent in opening the door when it was not reasonably safe to do so, and in allegedly failing to see what, by the reasonable use of his senses, he should have seen … . Price v Tasber, 2016 NY Slip Op 08385, 2nd Dept 12-14-16

 

NEGLIGENCE (DEFENDANT’S CAR MERELY FURNISHED THE CONDITION FOR PLAINTIFF’S BICYCLE ACCIDENT, NOT A PROXIMATE CAUSE)/PROXIMATE CAUSEEFENDANT’S CAR MERELY FURNISHED THE CONDITION FOR PLAINTIFF’S BICYCLE ACCIDENT, NOT A PROXIMATE CAUSE)/ BICYCLES (DEFENDANT’S CAR MERELY FURNISHED THE CONDITION FOR PLAINTIFF’S BICYCLE ACCIDENT, NOT A PROXIMATE CAUSE)/CONDITION FOR ACCIDENT (DEFENDANT’S CAR MERELY FURNISHED THE CONDITION FOR PLAINTIFF’S BICYCLE ACCIDENT, NOT A PROXIMATE CAUSE)

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WHEEL STOP OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS.

The Second Department after the grant of defendant’s summary judgment motion in this slip and fall case. The wheel stop over which plaintiff tripped was deemed open and obvious and not inherently dangerous:

Although a landowner has a duty to maintain its premises in a reasonably safe manner … , there is no duty to protect or warn against an open and obvious condition that is not inherently dangerous … . Generally, “[a] wheel stop or concrete parking lot divider which is clearly visible presents no unreasonable risk of harm” … .

Here, the defendant established its prima facie entitlement to judgment as a matter of law by submitting, inter alia, the plaintiff’s deposition testimony and photographic evidence demonstrating that the plaintiff tripped when her foot came into contact with a wheel stop that was open and obvious and not inherently dangerous. Among other things, the plaintiff testified at her deposition that she noticed the yellow cement wheel stops in the parking lot shortly before her accident … . Bogaty v Bluestone Realty NY, Inc., 2016 NY Slip Op 08343, 2nd Dept 12-14-16

 

NEGLIGENCE (WHEEL STOP OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS)/SLIP AND FALL (WHEEL STOP OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS)/WHEEL STOPS (WHEEL STOP OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS)/OPEN AND OBVIOUS (WHEEL STOP OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS)

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BANK WHICH ISSUED A MORTGAGE TO A THIRD PARTY THAT WAS USED BY THE THIRD PARTY TO PAY OFF PLAINTIFF’S MORTGAGE IN VIOLATION OF THE REAL PROPERTY LAW WAS ENTITLED TO AN EQUITABLE LIEN AGAINST PLAINTIFF’S PROPERTY IN THE AMOUNT OF THE ORIGINAL MORTGAGE.

The Second Department determined defendant bank (Chase) was entitled an equitable lien against plaintiff’s property under the doctrine of equitable subrogation. Chase had issued a mortgage to a third party which was used to pay off plaintiff’s mortgage. The transaction with the third party was fraudulent under Real Property Law 265-a known as the Home Equity Theft Prevention Act. Supreme Court held that Chase should have heeded warnings signs about the validity of the transaction, but did not actively facilitate the third party’s fraud (Chase did not have “unclean hands”). To avoid plaintiff’s unjust enrichment, Chase was entitled to an equitable lien against the property equal to the mortgage that was paid off plus taxes and insurance:

Under the doctrine of equitable subrogation, where the “property of one person is used in discharging an obligation owed by another or a lien upon the property of another, under such circumstances that the other would be unjustly enriched by the retention of the benefit thus conferred, the former is entitled to be subrogated to the position of the obligee or lien-holder” … . The plaintiff contends that the Supreme Court erred in awarding Chase equitable subrogation because, in light of the determination that it was not a bona fide encumbrancer for value, Chase should have been denied equitable subrogation under the doctrine of unclean hands … . We disagree. The doctrine of unclean hands applies when the offending party “is guilty of immoral, unconscionable conduct” directly related to the subject matter in litigation and which conduct injured the party seeking to invoke the doctrine … . Here, although Chase was charged with knowledge of information which would have caused a prudent lender to inquire as to the circumstances of the transaction, the Supreme Court did not find that it had actual notice of the fraud or that it did anything to actively facilitate the fraud. There was no evidence that Chase “was a willing participant in a mortgage [rescue] scheme” … . Lucia v Goldman, 2016 NY Slip Op 08353, 2nd Dept 12-14-16

 

MORTGAGES (BANK WHICH ISSUED A MORTGAGE TO A THIRD PARTY THAT WAS USED BY THE THIRD PARTY TO PAY OFF PLAINTIFF’S MORTGAGE IN VIOLATION OF THE REAL PROPERTY LAW WAS ENTITLED TO AN EQUITABLE LIEN AGAINST PLAINTIFF’S PROPERTY IN THE AMOUNT OF THE ORIGINAL MORTGAGE)/REAL PROPERTY LAW (HOME EQUITY THEFT PREVENTION ACT, BANK WHICH ISSUED A MORTGAGE TO A THIRD PARTY THAT WAS USED BY THE THIRD PARTY TO PAY OFF PLAINTIFF’S MORTGAGE IN VIOLATION OF THE REAL PROPERTY LAW WAS ENTITLED TO AN EQUITABLE LIEN AGAINST PLAINTIFF’S PROPERTY IN THE AMOUNT OF THE ORIGINAL MORTGAGE)/HOME EQUITY THEFT PREVENTION ACT (BANK WHICH ISSUED A MORTGAGE TO A THIRD PARTY THAT WAS USED BY THE THIRD PARTY TO PAY OFF PLAINTIFF’S MORTGAGE IN VIOLATION OF THE REAL PROPERTY LAW WAS ENTITLED TO AN EQUITABLE LIEN AGAINST PLAINTIFF’S PROPERTY IN THE AMOUNT OF THE ORIGINAL MORTGAGE)/EQUITABLE LIEN (BANK WHICH ISSUED A MORTGAGE TO A THIRD PARTY THAT WAS USED BY THE THIRD PARTY TO PAY OFF PLAINTIFF’S MORTGAGE IN VIOLATION OF THE REAL PROPERTY LAW WAS ENTITLED TO AN EQUITABLE LIEN AGAINST PLAINTIFF’S PROPERTY IN THE AMOUNT OF THE ORIGINAL MORTGAGE)/LIEN LAW (EQUITABLE LIEN, (BANK WHICH ISSUED A MORTGAGE TO A THIRD PARTY THAT WAS USED BY THE THIRD PARTY TO PAY OFF PLAINTIFF’S MORTGAGE IN VIOLATION OF THE REAL PROPERTY LAW WAS ENTITLED TO AN EQUITABLE LIEN AGAINST PLAINTIFF’S PROPERTY IN THE AMOUNT OF THE ORIGINAL MORTGAGE)/EQUTABLE SUBROGATION, BANK WHICH ISSUED A MORTGAGE TO A THIRD PARTY THAT WAS USED BY THE THIRD PARTY TO PAY OFF PLAINTIFF’S MORTGAGE IN VIOLATION OF THE REAL PROPERTY LAW WAS ENTITLED TO AN EQUITABLE LIEN AGAINST PLAINTIFF’S PROPERTY IN THE AMOUNT OF THE ORIGINAL MORTGAGE)/UNCLEAN HANDS (BANK WHICH ISSUED A MORTGAGE TO A THIRD PARTY THAT WAS USED BY THE THIRD PARTY TO PAY OFF PLAINTIFF’S MORTGAGE IN VIOLATION OF THE REAL PROPERTY LAW WAS ENTITLED TO AN EQUITABLE LIEN AGAINST PLAINTIFF’S PROPERTY IN THE AMOUNT OF THE ORIGINAL MORTGAGE)

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DRIVER STRUCK AS HE WAS ABOUT TO ENTER HIS PARKED CAR WAS NOT AN OCCUPANT OF THE CAR WITHIN THE MEANING OF THE INSURANCE POLICY.

The Second Department determined summary judgment was properly granted to the defendant insurer. The insurer, Republic, issued an uninsured-underinsured motorist policy to plaintiff’s employer. The policy applied to anyone who was an occupant of the vehicle at the time of injury. Here plaintiff (Bosco) had parked the car and gone across the street. As Bosco crossed the street to return he was struck by a car:

A person remains an occupant of a vehicle, even if that person is not in physical contact with the vehicle, “provided there has been no severance of connection with it, his [or her] departure is brief and he [or she] is still vehicle-oriented with the same vehicle” … . A connection to a vehicle will be severed “upon alighting therefrom to perform a chore which was not vehicle-oriented” … .

Moreover, there has to be “[m]ore than a mere intent to occupy a vehicle . . . to alter the status of pedestrian to one of occupying’ it” … . “[O]ne is [not] considered to be occupying a car if he is merely approaching it with intent to enter” … .

Here, Republic met its prima facie burden of establishing, as a matter of law, that Bosco was not occupying the insured vehicle at the time of the accident … . The evidence Republic submitted demonstrated that Bosco left the insured vehicle and walked across the street to go to his office on the second floor of the building, to retrieve documents. Thus, Bosco’s leaving the insured vehicle was not a temporary break in his journey such that he remained in the immediate vicinity of the insured vehicle … . Moreover, the evidence demonstrated that the accident occurred as Bosco was walking back across the street, and that he had yet to reach the insured vehicle. The evidence therefore showed that Bosco had a mere intent to enter the insured vehicle and was not an occupant of the insured vehicle at the time of the accident … . J. Lawrence Constr. Corp. v Republic Franklin Ins. Co., 2016 NY Slip Op 08349. 2nd Dept 12-14-16

 

INSURANCE LAW (DRIVER STRUCK AS HE WAS ABOUT TO ENTER HIS PARKED CAR WAS NOT AN OCCUPANT OF THE CAR WITHIN THE MEANING OF THE INSURANCE POLICY)/CONTRACT LAW (INSURANCE POLICY, DRIVER STRUCK AS HE WAS ABOUT TO ENTER HIS PARKED CAR WAS NOT AN OCCUPANT OF THE CAR WITHIN THE MEANING OF THE INSURANCE POLICY)/PEDESTRIANS (DRIVER STRUCK AS HE WAS ABOUT TO ENTER HIS PARKED CAR WAS NOT AN OCCUPANT OF THE CAR WITHIN THE MEANING OF THE INSURANCE POLICY)/TRAFFIC ACCIDENTS (PEDESTRIANS, (DRIVER STRUCK AS HE WAS ABOUT TO ENTER HIS PARKED CAR WAS NOT AN OCCUPANT OF THE CAR WITHIN THE MEANING OF THE INSURANCE POLICY)

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DEFFENDANT, WHO WAS 14 AT THE TIME OF THE ROBBERY, SHOULD HAVE BEEN ADJUDICATED A YOUTHFUL OFFENDER.

The Second Department, reversing Supreme Court, determined defendant, who had just turned 14 at the time of the robbery, should have been adjudicated a youthful offender. The defendant had been placed in a program called “Project Redirect” which, had he successfully completed it, would have resulted in dismissal of the felony. Defendant, however, did not successfully complete the program:

“The youthful offender provisions of the Criminal Procedure Law emanate from a legislative desire not to stigmatize youths . . . with criminal records triggered by hasty or thoughtless acts which, although crimes, may not have been the serious deeds of hardened criminals” … . Here, the evidence before the court showed that the defendant participated with a group of other youths in a single robbery at an age when he was barely capable of being held criminally responsible for his conduct (see Penal Law § 30.00). Although the defendant did not fully comply with the requirements of the “Project Redirect” program, there is no indication in the record that he is incapable of rehabilitation. Indeed, no further criminal conduct was alleged during that time. Under these circumstances, in view of the defendant’s tender years, background, and lack of juvenile or criminal record, the interest of justice would be served by relieving the defendant from the onus of a criminal record … . People v Darius B., 2016 NY Slip Op 08371, 2nd Dept 12-14-16

CRIMINAL LAWDEFFENDANT, WHO WAS 14 AT THE TIME OF THE ROBBERY, SHOULD HAVE BEEN ADJUDICATED A YOUTHFUL OFFENDER/YOUTHFUL OFFENDER DEFFENDANT, WHO WAS 14 AT THE TIME OF THE ROBBERY, SHOULD HAVE BEEN ADJUDICATED A YOUTHFUL OFFENDER)

 

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INTERNALLY INCONSISTENT VERDICT PROPERLY SET ASIDE.

The Second Department determined Supreme Court correctly set aside a verdict in a slip and fall case as inconsistent. The jury found plaintiff was negligent but her negligence was not a substantial factor in causing her injuries (she slipped and fell on a wet floor in defendant’s store). But the jury went on to attribute 15% of the fault for the accident to plaintiff:

… [W]hen a jury’s verdict is internally inconsistent, the trial court must order either reconsideration by the jury or a new trial … . Under the circumstances here, the jury’s verdict as to liability was internally inconsistent because the jury attributed 15% of the fault for the accident to the plaintiff, despite having found that the plaintiff’s negligence was not a substantial factor in causing her injuries … . The Supreme Court properly determined that the jury was confused about the meaning of the court’s charge regarding proximate cause when it returned its liability verdict … . Magee v Cumberland Farms, Inc., 2016 NY Slip Op 08354,  2nd Dept 12-14-16

CIVIL PROCEDURE (INTERNALLY INCONSISTENT VERDICT PROPERLY SET ASIDE)/VERDICT, MOTION TO SET ASIDE (INTERNALLY INCONSISTENT VERDICT PROPERLY SET ASSIDE)/NEGLIGENCE (SLIP AND FALL, INTERNALLY INCONSISTENT VERDICT PROPERLY SET ASIDE)/SLIP AND FALL (INTERNALLY INCONSISTENT VERDICT PROPERLY SET ASIDE)

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