6557. YOLANDA BELMER, plf-res, v. HHM ASSOCIATES, INC., def-ap, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., ET AL, def — Shaub, Ahmuty, Citrin Spratt, LLP, Lake Success (Christopher Simone of counsel), for ap — Norman A. Olch, New York, for res — Judgment, Supreme Court, New York County (Matthew F. Cooper, J.), entered July 20, 2010, after a jury trial, in plaintiff’s favor, reversed, on the law, without costs, the judgment vacated, and the matter remanded for a new trial on the issues of liability and plaintiff’s comparative negligence.
Plaintiff was injured when the tire of a bus she was driving rolled into a large hole in a roadway. Defendant HHM Associates, Inc. had contracted with nonparty the City of New York to replace sewer mains along a stretch of roadway that included the site of the accident. HHM’s project entailed excavating and restoring the roadway. According to the City’s consulting engineer, the roadway had been restored with temporary asphalt when the accident occurred. Plaintiff’s theory at trial was that HHM left the hole in the roadway while performing its work. At the charge conference, HHM requested a charge based on the City’s nondelegable duty to keep its streets in a reasonably safe condition (see e.g. Friedman v. State of New York, 67 NY2d 271, 283 [1986]). HHM also submitted a proposed verdict sheet that contained interrogatories as to whether the City was negligent and, if so, whether such negligence was a substantial factor in causing plaintiff’s injuries. The proposed verdict sheet also called for an apportionment of culpability among HHM, the City and plaintiff. The trial court declined to instruct the jury on the City’s possible liability and did not reference the City on the verdict sheet that was submitted to the jury. The jury awarded damages for past and future pain and suffering (defined as noneconomic loss under CPLR 1600), lost earnings and medical expenses. In so doing, the jury found HHM and plaintiff to be 77 percent and 23 percent culpable, respectively. We reverse.
