RECITATION, AS REQUIRED BY CPLR 2219 (A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION: Notice of Motion and Affirmation in Support 1,2 Affirmation in Opposition 3 Reply Affirmation 4 Plaintiff’s Supplemental Support 5 Defendant’s Supplemental Opposition 6 DECISION AND ORDER Following a trial in an action to recover for injuries sustained as a result of an alleged fall from a stairway in a Brooklyn subway station, the jury found that defendant, the New York City Transit Authority was not negligent. Plaintiff moves for an order to set aside the verdict as against the weight of the evidence pursuant to CPLR 4404(a). To set aside the verdict, plaintiff must establish that the jury could not have reached the verdict “by any fair interpretation of the evidence.” (See Wilson v. County of Westchester, 148 AD3d 1091 [2d Dept 2017].) Plaintiff claims that based on the evidence, the only reasonable verdict was that New York City Transit Authority was negligent. Plaintiff testified at trial that he had exited a train from a platform at a Brooklyn subway station with a friend, Mr. Johnson, walking toward the street which was located at the bottom of two sets of stairs. The stairs were separated by a landing and equipped with bilateral handrails. When they reached the top of the stairs, plaintiff descended the first flight of stairs ahead of Mr. Johnson, and then stopped on the landing in between the stairs to wait for Mr. Johnson to catch up from behind, while holding onto the handrail. Mr. Johnson, however, lost his balance, fell down the steps and “bumped” the plaintiff, causing him to go “forward.” To prevent falling, plaintiff held onto the handrail, which however, “came out of the socket” and “struck” the plaintiff, who consequently lost his grip and fell down the stairs. Plaintiff further testified that approximately two and a half weeks before the incident, plaintiff was at the same subway station returning home from a birthday party and had noticed that the handrail which later caused his incident was loose when he pulled on it. On that day, plaintiff reported the loose condition of the handrail to the token booth clerk who indicated to the plaintiff that he would “make a note of it.” Plaintiff contends that the jury should have found the Transit Authority negligent for failing to repair the handrail from the date he had reported its loose condition to the token booth clerk until the date of the accident. Plaintiff argues that since defendant did not produce a witness to contradict plaintiff’s version of events, it was against the weight of the evidence for the jury not to find defendant negligent. The possessor of property may be held liable for injuries arising from a dangerous condition on the property if it fails to remedy a defect of which it had notice within a reasonable time prior to the incident within which to remedy the condition. (See Freidah v. Hamlet Golf & Country Club, 727 AD2d 572 [2d Dept 2000].) Since the Transit Authority failed to produce a witness refuting plaintiff’s testimony that he had notified defendant of the defect weeks before the incident, plaintiff contends the only reasonable inference from the evidence is that defendant was negligent in failing to take reasonable steps to repair it. Plaintiff’s position however, lacks merit as the standard to set aside a verdict is not whether the opposing party was able to refute movant’s testimony through another witness, but proof that the evidence favoring movant is so strong that the verdict could not have been reached on any fair interpretation of the evidence. (See Lolik v. Big Supermarkets Inc., 86 NY2d 744 [1995].) In interpreting the evidence, the jury is exclusively authorized to determine issues of credibility, and consequently, disregard testimony as not credible, notwithstanding that it is not controverted by another witness. (See Cruz v. New York City Transit Authority, 31 AD3d 688 [2D Dept 2006].) Here, the jury could have rejected plaintiff’s testimony that he had reported the alleged condition to defendant two weeks prior to the incident (Id.) even though, no other witness contradicted the plaintiff. (See, e.g., Moses v. Appliance & Elecs. City, Corp., 306 AD2d 258 [2d Dept 2003]; Margiotta v. Rock & Roll Livery, Ltd., 302 AD2d 500 [2d Dept 2003].) The jury could have found plaintiff not credible, based on factors including inconsistencies in plaintiff’s testimony regarding the nature of the alleged defect and the cause of his fall. In describing the defect, plaintiff had testified pretrial that the handrail came out of the wall “ten to twelve inches,” while at trial, claimed it came out “four to six inches,” yet produced post incident photographs of the handrail which showed a detachment of less than two inches as a person was pulling on it to document the gap. Similarly, plaintiff had testified during deposition that the cause of the alleged incident was getting “bumped” by Mr. Jordan, who weighed two hundred and ten pounds, while at trial testified that Mr. Jordan weighed only one hundred and fifty pounds, and that the cause of his fall was the allegedly defective handrail. Plaintiff’s inconsistent testimony regarding the nature of the defect and causation of the incident could have substantially damaged his credibility, prompting the jury to reject other portions of his testimony, including testimony that he had placed defendant on notice of the defect two weeks before the incident. Since without evidence of defendant’s prior notice of the alleged defect, plaintiff could not establish negligence (Patrick v. Bally’s Total Fitness, 292 AD2d 433 [2d Dept 2002]), the jury’s rejection of plaintiff’s testimony of having placed defendant on notice of the defect prior to the incident would preclude them from finding defendant negligent. Plaintiff however, points out that notice can be either actual or constructive, and contends plaintiff’s testimony, even if disbelieved by the jury, would bear only on whether defendant had actual notice of the alleged defect. Plaintiff claims he established constructive notice exclusively through defendant’s testimony and records. Mr. Blandina, defendant’s structure maintainer testified defendant had the duty to periodically inspect the subject handrail. However, the date of the last inspection noted in defendant’s records exchanged during discovery, was two years prior to the alleged incident. Plaintiff argues that the total lack of inspection for two years is tantamount to defendant’s breach of duty to conduct periodic inspections of the handrail. As the possessor of the subject premises, defendant had the duty to conduct reasonable inspections of the areas of potential defects prior to plaintiff’s incident (Basso v. Miller, 40 NY2d 233 [1976]), and is charged with constructive notice of a defect, if in the exercise of reasonable inspection, it would have discovered it in enough time to allow its repair before plaintiff’s incident. (Id.) Plaintiff claims defendant is charged with constructive notice of the alleged defect because, had it periodically inspected the handrail as required during the two years before the incident, it would have discovered and remedied the defect prior to plaintiff’s incident. Since constructive notice is established through defendant’s testimony, plaintiff’s inconsistencies as a matter of law have no bearing on the issue of notice, thus, negligence, and at most, bear on causation which the jury did not determine. Thus, the jury should have found that defendant was negligent exclusively based on defendant’s testimony and records. Plaintiff’s claim however, that he established constructive notice through defendant’s testimony is unavailing. Constructive notice requires proof that the defect is of such nature that it would be discoverable upon a reasonable inspection. Where the defect is “latent” constructive notice may not be imputed, as it would not be discoverable upon a reasonable inspection (See, Reed v. 64 JWB, LLC, 171 AD3d 1228, 1229 [2d Dept 2019], Ferris v. County of Suffolk, 174 A.D.2d 70, 76, 579 N.Y.S.2d 436 [1992].) Here, plaintiff failed to show that the loose condition of the handrail was in any way visible and apparent. (See Patrick v. Bally’s Total Fitness, 292 AD2d 433 [2d Dept 2002].) Rather, plaintiff testified the handrail became detached from the wall when he pulled on it, suggesting that before the incident the alleged defect was not visible or apparent as plaintiff had not yet detached the railing from the wall. Absent proof that the defect was visible, defendant cannot be changed with constructive notice since visual inspections of it would not have disclosed the defect. Plaintiff further failed to present any evidence that defendant was required to conduct any type of inspection other than visual, or that it had an obligation to perform inspections more frequently than every two years. Mr. Blandina, a plumber by trade and the only witness who testified about defendant’s duty to inspect, stated that he has no knowledge of the method or the frequency with which the handrails were required to be inspected as same is beyond the scope of his trade. To establish constructive notice plaintiff must further show that the defect existed for “a sufficient length of time prior to the accident to allow defendant to discover and remedy it.” (Patrick v. Bally’s Total Fitness, 292 AD2d 433 [2d Dept 2002].) Here, the only evidence that the alleged defect existed before the incident is plaintiff’s testimony that two weeks prior, he had noticed that the handrail was loose, a claim which the jury is empowered to reject as not credible. Apart from plaintiff’s failure to prove notice, the jury’s verdict that defendant was not negligent could be exclusively based on plaintiff’s diminished credibility resulting from inconsistencies in his testimony. The jury could have disbelieved plaintiff’s claim that the handrail was defective at the time of or prior to the incident; that he was holding onto the handrail as he was standing still on the flat platform, or that the handrail moved and struck him during the incident. Any of the foregoing conclusions, would support the jury’s finding that plaintiff failed to meet his burden of showing that the defendant was negligent. (Spencer v. City of New York, 300 AD2d 468 [2d Dept 2002].) Finally, plaintiff’s contention that defendant’s records unequivocally proved that the subject handrail was last inspected two years prior to the incident is further meritless. Plaintiff’s counsel presented Mr. Blandina with records defendant had provided during discovery without establishing any foundation that the records reflected all inspections defendant performed during that period prior to the incident. Plaintiff’s counsel had Mr. Blandina read from the records a list of some repairs and inspections performed at the subject subway station without establishing that the list captured all inspections, as opposed to only those performed incidental to repair or other events. Moreover, while Mr. Blandina testified that the inspectors routinely prepared inspection “sheets” during their inspections, none were entered into evidence, nor did plaintiff present any evidence that the inspections memorialized in the “sheets” were contained in the records plaintiff’s counsel had presented to Mr. Blandina. Based on the evidence, while the handrail may have been last inspected two years prior to the incident, plaintiff failed establish the necessary foundation to prove same as a matter of law. Based on the foregoing, plaintiff’s motion to set aside the verdict is denied. This constitutes a decision and order of the court. Dated: September 27, 2019
