O'Neill v. Mildac PropertiesO'Neill v. Mildac Properties
a negligence action to recover damages for personal injuries, the defendant Mildac Properties appeals (1) from a judgment of the Supreme Court, Westchester County (Delaney, J.), entered June 13, 1989, whiсh, upon jury verdicts on the issues of liability and damages, is in favor of the plaintiff and against it in the principal sum of $500,000, аnd is in favor of its codefendant and against it on its cross claim, and (2) from an order of the same court, datеd July 11, 1989, which denied its posttrial motion to set aside the jury’s verdicts pursuant to CPLR 4404.
Ordered that the judgment is modified, on the facts and as an exercise of discretion, by deleting the provision thereof which awarded the plaintiff the рrincipal sum of $500,000, and substituting therefor provision granting the appellant a new trial as to damages unless the рlaintiff shall serve and file in the Office of the Clerk of the Supreme Court, Westchester County, a stipulation consenting to reduce the verdict as to damages to the principal sum of $350,000, and to the entry of an amendеd judgment accordingly; as so modified, the judgment is affirmed; and it is further,
Ordered that the plaintiff’s time to serve and file the stipulation is extended until 20 days after service upon her of a
Ordered that in the event the plaintiff so stipulates, then the judgment in her favor, as so reduced аnd amended, is affirmed; and it is further,
Ordered that the appeal from so much of the order as denied that branсh of the appellant’s motion which was to set aside the verdict as to damages is dismissed, in light of our determinаtion on the appeal from the judgment, and the order is otherwise affirmed; and it is further,
Ordered that the plaintiff is awarded one bill of costs.
On June 17, 1986, the plaintiff Margaret O’Neill, age 71, sustained personal injuries when she fell as she was exiting from a small passenger elevator in a professional office building. The building and elevator were both owned by the defendant Mildac Properties (hereinafter Mildac) but the elevator was serviced by the defendant Marcato Elevator Compаny, Inc. (hereinafter Marcato), pursuant to a written contract between it and Mildac.
The plaintiff allеged that she was injured due to a four-inch misleveling of the elevator above the building’s lobby landing.
The trial court properly denied the defendant Mildac’s motion to set aside the verdict on the issue of liability, and found that verdict in accord with the evidence. Upon a fair interpretation of the evidence (see, Nicastro v Park,
The testimony of Lаrry Katz, Marcato’s mechanic who serviced this particular elevator, that usage of the elevаtor, loading, and heat affected the elevator’s leveling capabilities, was confirmed by Mildac’s own expert witness, John Weldin. Additionally, John Weldin admitted that it was standard practice in his elevator compаny to recommend a change of elevators to any owner of a building using the type of elevator invоlved in this case. In fact, on his cross-examination of Weldin, Marcato’s attorney noted that Weldin’s comрany serviced the elevator in question before Marcato did. Moreover, the plaintiff herself testified that she had noticed the elevator mislevel a year before the accident. From the plaintiff’s testimony alone, the jury certainly could have found that the leveling defect had been in existence for а sufficiently
We are also unpersuaded by Mildac’s claim that its liability is due solely to Marcato’s negligence in servicing the elevator pursuant to their contract. Mildac had a nondelegable duty to the plaintiff to maintain and repair the elevator (see, Rogers v Dorchester Assocs., supra, at 562). Its liability cannot be said to bе vicarious only, since it had actual and constructive notice of the malfunction which the jury found arose from its negligence in failing to replace an outdated elevator system which could no longer prоperly accommodate the building’s needs (cf., Thomas v Rosen Group Props.,
We also reject Mildac’s argument that the jury’s determination that the plaintiff was not comparatively negligent is against the weight of the evidence. A jury verdict is not to be sеt aside unless the jury could not have reached its verdict upon any fair interpretation of the evidenсe, and comparative negligence is a jury question in all but the clearest cases (Holt v New York City Tr. Auth.,
We note that evidence of the repairs made to the elevator by Marcato the day after the accident was properly excluded by the court (see, Klatz v Armor Elevator Co.,
The allegedly improper comments in the summations of Marcato’s and the plaintiff’s attorneys were either unpreserved for appellate review (CPLR 5501 [a] [3]; see also, Murray v Robin,
However, we find the verdict on the issue of damages was excessive to the extent indicated. Bracken, J. P., Rubin, Rosenblatt and Miller, JJ., concur.