Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion: Papers Numbered Plaintiff’s Notice of Motion with Accompanying Affidavits and Exhibits 1 Affirmation in Opposition to Motion to Set Aside the Verdict 2 Supplemental Memorandum of Law in Support of Motion to Set Aside the Verdict with Accompanying Exhibits 3 Supplemental Memorandum in Opposition 4 DECISION/ORDER Plaintiff Coleen Hall (“plaintiff” or “Hall”) seeks to set aside the liability verdict in favor of defendant City of New York (“defendant” or “City”) rendered by the jury on July 13, 2018. The jury found that plaintiff slipped and fell on snow or ice near the pedestrian crosswalk located at the intersection of Clarkson Avenue and East 91st Street in Brooklyn, and that the City was negligent. However, the jury then found that the City’s negligence was not a substantial factor in causing the incident on December 17, 2013. Plaintiff moves to set aside the verdict on the ground that the jury’s finding that the City was negligent necessitated an additional finding that such negligence was the proximate cause of plaintiff’s injuries because the issues of negligence and proximate cause were inextricably linked. Plaintiff further claims that the evidence so preponderated in her favor that the jury verdict on lack of proximate cause in favor of defendant could not have been reached based on any fair interpretation of the evidence. Plaintiff’s motion to set aside the verdict is denied on the grounds set forth below. Pursuant to CPLR §4404(a), there are three grounds for setting aside a verdict: 1) the verdict is contrary to the weight of evidence; 2) the interest of justice requires that the verdict be set aside; and 3) the jury could not agree after being kept together for a reasonable time. This court only considers the first and second grounds because the third ground does not apply. A verdict is contrary to the weight of evidence when the jury could not have reached its decision on any “fair interpretation of the evidence.” Dhanessus v. Bugid, Inc., 4 A.D.3d 499 (2d Dept. 2004); Cohen v. Gordon, 297 A.D.2d 272 (2d Dept. 2002). Whether a jury verdict should be set aside on this basis does not involve a question of law, but rather a discretionary weighing of the facts. Watson v. New York City Tr. Auth., 172 A.D.3d 957, 958 (2d Dept. 2019); Stallings-Wiggins v. NYC Trans. Auth., 166 A.D.3d 840 (2d Dept. 2018). It is clear that the jury found that defendant was negligent based upon the expert witnesses’ testimony regarding the City’s snow-removal procedures. However, despite this finding on the negligent removal of snow, the jury could also have found that the ongoing precipitation in the hours leading up to the incident or the pothole beneath the ice, and not the negligent snow removal prior to the day of the incident, caused plaintiff to slip and fall. Indeed, the jury heard from experts on both sides regarding weather conditions and the impact of precipitation, and there is nothing in the verdict that indicates that they improperly credited one expert over the other. Therefore, the verdict may not be set aside on the ground that it was contrary to the weight of evidence. In deciding whether to set aside a verdict in the interest of justice, a trial judge must decide whether there were “errors in the trial court’s rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise.” Russo v. Levat, 143 A.D.3d 966, 968 (2d Dept. 2016). The trial court must also decide whether “substantial justice has been done, and must look to common sense, experience, and sense of fairness in arriving at a decision.” Micalleff v. Miehle Co., 39 NY2d 376, 381 (1976); Allen v. Uh, 82 A.D.3d 1025, 1025 (2d Dept. 2011). Plaintiff does not claim that there was any error in this court’s rulings, misconduct, or any newly discovered evidence or surprise. Therefore, the verdict may not be set aside in the interest of justice. In essence, plaintiff is challenging the validity of the verdict sheet which asks first whether defendant was negligent, and then whether defendant’s negligence was the proximate cause of the slip and fall. The attorneys for both parties had extensive discussions with the court regarding the verdict sheet and agreed that negligence and proximate cause would be two distinct questions, and that if the jury found that the City’s negligence was not the proximate cause of the slip and fall, then it would return a verdict for defendant. Neither attorney raised any objection regarding the verdict sheet. Plaintiff never argued at the charging conference that the issues of negligence and proximate cause were inextricably intertwined and never objected to the final verdict sheet. Plaintiff is now precluded from raising such a challenge. It is well-settled that a “challenge to a verdict sheet is unpreserved where a party has consented to the sheet as given to the jury.” Jing Xue Jiang v. Dollar Rent a Car, Inc., 91 AD3d 603 (2d Dept. 2012); Myers v. S. Schaffer Grocery Corp., 281 A.D.2d 156, 157 (1st Dept. 2001); Beach v. Touradji Capital Mgt., LP, 2019 NY Slip Op 51372(U); 2019 N.Y. Misc. LEXIS 4569, *34-35 (Sup. Ct. N.Y. Co. 2019). Therefore, this court finds that plaintiff waived her right to challenge the verdict sheet to which she consented, and plaintiff’s motion to set aside the verdict is denied. This constitutes the decision and order of the court. Dated: October 13, 2019
