Opinion
November 22, 1967
Appeal from an order and judgment of the Supreme Court, Columbia County, on the ground that the jury's verdict in favor of respondent in the amount of $42,500 is contrary to law and is excessive. While removing a small refrigerator from a second floor apartment, the respondent was descending a stairway and when he reached the fourth step from the bottom, the step collapsed, throwing him to the bottom of the stairs, causing him to sustain serious personal injuries. The building owned by the defendant contained four apartments and the parties concede that it comes within the purview of and is governed by the provisions of the Multiple Residence Law, which provides in pertinent part that "The owner shall keep all and every part of a dwelling and the lot on which it is situated in good repair" (Multiple Residence Law, § 174). The only evidence upon the trial was that produced by the plaintiff and his witnesses. There was testimony that for some time prior to the accident the stairs were "weak and wiggly" and that when another tenant had used the stairway "a couple of months" prior to the accident, the "stairs would wiggle". The record further shows that prior to the accident, a tenant upon paying his rent advised Mr. Coxon, the president and sole stockholder of the defendant, that the stairs were weak and Coxon replied "I'll see about it". Although Coxon was present during the trial, this testimony was not refuted. In the fact of this uncontradicted testimony, appellant's present contention that it had no notice of any dangerous condition is without merit and the jury had the right to conclude that the appellant had constructive notice of the described condition. Indeed, the additional testimony that the landlord had been advised about the weak condition of the stairway, had agreed "to see about it" and had failed to do so, is supportive of the verdict for the injured tenant ( Zoda v. National City Bank, 282 N.Y. 774). The questions as to defendant's negligence and any claimed contributory negligence were factual questions for the jury to determine and we can see no reason to disturb their verdict ( Lambert v. King, 2 A.D.2d 737). Neither can the appellant's claim of the excessiveness of the verdict be sustained. At the time of his injury, respondent was earning $73.85 per week and on the trial it appeared that he had not worked since the accident. His doctor testified that "the knee is almost completely stiff", that it was a permanent condition and concerning which there was "nothing medical science can do to change it". Upon the record, the jury's determination of damages must be upheld. It is only where it can be said that the verdict is clearly excessive that interference is justified. "That another trier of the facts might well have arrived at a lower amount is not the test ( Colby v. Drew, 15 A.D.2d 846), nor is the amount of special damages an absolutely controlling factor ( Becker v. Ginsberg, 23 A.D.2d 916)" ( Sandor v. Katz, 27 A.D.2d 766). Order and judgment affirmed, with costs. Herlihy, J.P., Reynolds, Aulisi and Gabrielli, JJ., concur in memorandum by Gabrielli, J.