Opinion
October 20, 1997
Appeal from the Supreme Court, Kings County (Yoswein, J.).
Ordered that the order and judgment is modified, on the law and the facts, by deleting the provision thereof dismissing the complaint insofar as asserted against the defendants Gaspare Gerardi and Fannie Gerardi, and substituting therefor a provision granting a new trial on the issue of liability with respect to the defendants Gaspare Gerardi, Fannie Gerardi, and Mark Norato; as so modified, the order and judgment is affirmed, with one bill of costs to the appellants payable by the respondents appearing separately and filing separate briefs.
The plaintiffs claim that the injured plaintiff fell on ice which formed when snow piled by Mark Norato next to the door of their apartment melted and refroze. The jury absolved Mark Norato of liability, but found Gaspare Gerardi and Fannie Gerardi, the owners of the property, 90% at fault and the injured plaintiff 10% at fault in the happening of the accident.
Gaspare Gerardi and Fannie Gerardi moved to set aside the verdict on the ground that the evidence of their negligence was legally insufficient and, in any event, the verdict absolving Mark Norato of liability while finding them to be 90% at fault was against the weight of the credible evidence.
The trial court granted their motion and dismisses the complaint insofar as asserted against them, on the ground that there was no evidence that Leonard Gerardi, acting as agent for Gaspare Gerardi and Fannie Gerardi, was or should have been aware that an icy condition had formed, and further that there was no evidence that the ice came from the snow which had been piled next to the entrance to the plaintiff's apartment. The trial court further concluded that: "even if it could be deemed that a prima facie case was presented by the plaintiffs, a new trial would have to be granted because the verdict is against the weight of credible evidence in finding the moving defendants negligent and 90% at fault and exonerating the the co-defendant, Mark Norato had negligently placed snow and that it was this snow which caused the icy condition where plaintiff Frank Roca fell".
The Supreme Court erred in dismissing the complaint, on the ground of legal insufficiency, against the Gerardis. A jury verdict will be set aside as legally insufficient only if there is "no valid line of reasoning permissible inferences which could possibly lead rational [persons] to the conclusion reached by the jury on the basis of the evidence presented at trial" ( Cohen v Hallmark Cards, 45 N.Y.2d 493, 499; see, Nicastro v. Park, 113 A.D.2d 129, 132).
In this case, the plaintiffs were not required to prove that Leonard Gerardi had actual or constructive notice that the ice had formed: notice of a condition which caused the ice to form was sufficient ( see, Zahn v. City of New York, 299 N.Y. 581; Ferguson v. City of New York, 201 A.D.2d 422; Caro v. Skyline Terrace Coop., 132 A.D.2d 512; Krauss v. Stiles, 277 App. Div. 884). The jury's conclusion that the ice came from the pile of snow next to the plaintiffs' entrance was inferrable from the testimony and photographic evidence, and Leonard Gerardi had both the time and the opportunity to correct the dangerous condition ( cf., Porcari v. S.E.M. Mgt. Corp., 184 A.D.2d 556; Gonzalez v. City of New York, 168 A.D.2d 541). Accordingly, the finding that the Gerardis were at fault in the happening of the accident had a rational basis in the evidence presented.
However, the finding that the Gerardis were 90% at fault in the happening of the accident, while absolving the codefendent Mark Norato of all liability, warrants setting aside the verdict as against the weight of the evidence, since the testimony was that Mark Norato negligently placed the pile of snow next to the entrance of the plaintiffs' apartment, thereby creating the dangerous condition which Leonard Geradi failed to correct ( see, Camacho v. Ezras Yisrael, Inc., 221 A.D.2d 275; Marrero v Milevoi, 227 A.D.2d 124; Johnson v. Hallam Enters., 208 A.D.2d 1110).
Accordingly, a new trial is granted on the issue of liability ( see, Pinto v. Pyramid Tire, 193 A.D.2d 723).
Miller, J.P., Ritter, Krausman and Goldstein, JJ., concur.