Jose Montas, Appellant,v.JJC Construction Corporation, et al., Respondents.

Brief

N.Y.January 2, 2013

Bronx County Clerk’s Index No. 27241/99 Court of Appeals STATE OF NEW YORK JOSE MONTAS, Plaintiff-Appellant, against JJC CONSTRUCTION CORPORATION, THE CITY OF NEW YORK and THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, Defendants-Respondents. BRIEF FOR PLAINTIFF-APPELLANT JOSE MONTAS LAW OFFICE OF WILLIAM A. GALLINA Attorney for Plaintiff-Appellant Jose Montas By: POLLACK POLLACK ISAAC & DE CICCO Appellate Counsel 225 Broadway, Suite 307 New York, New York 10007 212-233-8100 Date Completed: May 3, 2012 To Be Argued By: Brian J. Isaac Time Requested: 30 Minutes Of Counsel: Brian J. Isaac Michael H. Zhu i TABLE OF CONTENTS Page TABLE OF AUTHORITIES ........................................ ii PRELIMINARY STATEMENT ........................................ 1 JURISDICTION AND TIMELINESS .................................. 2 BRIEF STATEMENT OF THE CASE .................................. 2 BRIEF SUMMARY OF ARGUMENT .................................... 6 STATEMENT OF FACTS ........................................... 7 A. Testimony of Mr. Montas ............................. 7 B. Testimony of Mr. Duodo .............................. 9 C. Testimony of JJC ................................... 12 D. Motions for a Directed Verdict ..................... 16 ARGUMENT .................................................... 18 THE FIRST DEPARTMENT ERRED IN AFFIRMING THE TRIAL COURT’S ORDER GRANTING THE DEFENDANTS’ MOTION FOR A DIRECTED VERDICT AND DISMISSING THE COMPLAINT ON THE GROUNDS THAT THERE WAS INSUFFICIENT EVIDENCE OF DEFENDANTS’ NEGLIGENCE IN CAUSING AND CREATING A HAZARDOUS CONDITION THAT WAS A SUBSTANTIAL FACTOR IN CAUSING THE PLAINTIFF’S ACCIDENT .................... 18 A. The Law on Directed Verdicts ....................... 18 B. Proximate Cause .................................... 23 CONCLUSION .................................................. 41 ii TABLE OF AUTHORITIES State Cases Argentina v. Emory WDC, 93 NY2d 554 [1999].................... 27 Austin v. Consilvio, 295 AD2d 244 [1 st Dept. 2002] ............ 19 Bernstein v. NYC, 69 NY2d 1020 [1987]......................... 35 Betzag v. Gulf Oil Corp., 298 NY 358 [1949]................... 29 Blass v. Mi Hong, 240 AD2d 187 [1 st Dept. 1997] ........... 24, 25 Blum v. Fresh Grown, 292 NY 241 [1944]........................ 18 Brady v. City of NY, 39 AD2d 600 [2d Dept. 1972].............. 36 Brennan v. Bauman & Sons Buses, Inc., 107 AD2d 654 [2d Dept. 1985] ............................................. 38 Burd v. Bleischer, 208 AD 499 [4 th Dept. 1924] ................ 36 Burghardt v. Cmaylo, 40 AD3d 568 [2d Dept. 2007].............. 25 Bush v. Lamb-Graze Harbor, 246 AD2d 768 [3d Dept. 1998]....... 27 Butler v. NYS Olympic, 292 AD2d 748 [3d Dept. 2002]........... 18 Carroll v. Wolfe, 35 AD2d 842 [2d Dept. 1970]................. 36 Catlyn v. Hotel & 33 Co., 230 AD2d 655 [1 st Dept. 1996] ....... 35 Clarke v. NYC, 295 NY 861 [1946].............................. 28 Cohen v. Hallmark Cards, 45 NY2d 493 [1980]................... 18 Colon v. Citicorp Investment, 283 AD2d 193 [1 st Dept. 2002]......................................... 31, 32 Colozzo v. LoVece, 144 AD2d 617 [2d Dept. 1988]............... 20 Conway v. New York City Transit Authority, 66 AD3d 948 [2d Dept. 2009] ............................................. 22 Cornbrooks v. Terminal Barber Shops, Inc., 282 NY 217 [1940] ........................................... 29 Cruz v. NYC, 218 AD2d 546 [1 st Dept. 1995] .................... 27 iii Derdiarian v. Felix Contr. Corp., 51 NY2d 308 [1980].......... 23 Deshaies v. Prudential, 302 AD2d 999 [4 th Dept. 2003] ......... 27 DiGelormo v. Weil, 260 NY 192 [1932].......................... 35 Dillon v. Rockaway Beach Hospital, 284 NY 176 [1940].......... 29 Doherty v. King Cullen, 261 AD2d 568 [2d Dept. 1999].......... 35 Esposito v. Wright, 28 AD3d 1142 [4 th Dept. 2006] ............. 27 Feblot v. NY Times Co., 32 NY2d 486 [1973].................... 35 Ford v. Mizio, 274 AD2d 329 [1 st Dept. 2000] .............. 31, 33 Forte v. Albany, 279 NY 416 [1939]........................ 25, 26 Francis v. NYCTA, 295 AD2d 164 [1 st Dept. 2002] ............... 27 Gayle v. City of New York, 247 AD2d 431 [2d Dept. 1998] ..................................... 25, 28, 31 Gayle v. City of New York, 92 NY2d 936 [1998].......... 7, 24, 25 Gomes v. Courtesy Bus Co., 251 AD2d 625 [2d Dept. 1998]....... 35 Gonzalez v. NYCHA, 77 NY2d 663 [1991]......................... 30 Griffith v. Southbridge Towers, 248 AD2d 162 [1 st Dept. 1998]............................................. 23 Harris v. Jackson, 30 AD3d 1027 [4 th Dept. 2006] .............. 27 Ingersoll v. Liberty Bank of Buffalo, 278 NY 1 [1932] ..................................... 29, 30, 31 Jacino v. Sugerman, 10 AD3d 593 [2d Dept. 2004]............... 20 Joyce v. Rumsey Realty, 17 NY2d 118 [1966].................... 24 Klein v. LIRR Co., 303 NY 807 [1962].......................... 28 Lang v. Newman, 12 NY3d 868 [2009]............................ 18 Lopez v. 1372 Shakespeare Ave., 299 AD2d 230 [1 st Dept. 2002]............................................. 24 Lopez v. New York City Transit Authority, 60 AD3d 529 [1 st Dept. 2009]............................................. 22 iv Lynn v. Lynn, 216 AD2d 194 [1 st Dept. 1995] ................... 36 Madeiasevici v. Daccordo, 34 AD3d 651 [2d Dept. 2006]......... 25 Mertsaris v. 73 rd Corp., 105 AD2d 67 [2d Dept. 1984] .......... 29 Mohamed v. NYC, 205 AD2d 415 [1 st Dept. 1994] ................. 24 N.Y. Bankers v. Duncan, 257 NY 160 [1931]..................... 37 Matter of Nowakowski, 2 NY2d 618 [1957]....................... 37 Pardo v. Bialystoker, 308 AD2d 384 [1 st Dept. 2003] ....... 24, 27 People v. Geraci, 85 NY2d 359 [1995].......................... 28 Perez v. NYCHA, 212 AD2d 379 [1 st Dept. 1995] ................. 23 Rhabb v. NYCHA, 41 NY2d 200 [1976]............................ 19 Rivera v. Adinolfi, 249 AD2d 55 [1 st Dept. 1998] .............. 36 Robinson v. NAB Constr., 210 AD2d 86 [1 st Dept. 1994] ......... 24 Rojas v. Lynn, 218 AD2d 611 [1 st Dept. 1995] .................. 36 Rosario v. NYC, 157 AD2d 467 [1 st Dept. 1990] ................. 19 Rosenberg v. Schwartz, 260 NY 162 [1932]...................... 29 Rotz v. NYC, 143 AD2d 301 [1 st Dept. 1988] .................... 19 Rowe v. Harrison, 303 AD2d 863 [3d Dept. 2003]................ 27 Salamone v. Yellow Taxi Corp., 242 NY 251 [1925].............. 36 Santiago v. VIG, 201 AD2d 337 [1 st Dept. 1994] ................ 24 Scantlebury v. Lehman, 305 NY 703 [1953]...................... 29 Schneider v. Kings Hwy. Hospital Center, 67 NY2d 743 [1986] ...................................... 29, 30 Serra v. Bonofiglio, 26 AD2d 955 [2d Dept. 1966].............. 36 Shutak v. Handler, 190 AD2d 345 [1 st Dept. 1993] .............. 24 Sorrentino v. Fireman, 13 AD3d 122 [1 st Dept. 2004] ........... 19 Stein v. Palisi, 308 NY 293 [1955]............................ 29 v Sweet v. Perkins, 196 NY 482 [1909]........................... 27 Szala v. Szala, 31 AD3d 423 [2d Dept. 2006]................... 27 Szczerbiak v. Pilat, 90 NY2d 553 [1997]................... 18, 37 Torelli v. NYC, 176 AD2d 119 [1 st Dept. 1991], lv. den., 79 NY2d 754 [1992] ................................ 30 Trimble v. City of NY, 275 AD 169 [2d Dept. 1949]............. 36 Vera v. Knolls Ambulance, 160 AD2d 494 [1 st Dept. 1990] ....... 19 Verdi v. Top Lift, 50 AD3d 574 [1 st Dept. 2008] ............... 18 Vintage, LLC v. Laws Const. Corp., 13 NY3d 847 [2009]......... 18 Yurkovich v. Kvarner Woodworking, Inc., 289 AD2d 183 [1 st Dept. 2001]............................................. 39 State Statutes CPLR §4401............................................ 18, 20, 32 CPLR §5601[a].................................................. 2 CPLR 4404[a].................................................. 40 1 COURT OF APPEALS THE STATE OF NEW YORK ---------------------------------------X JOSE MONTAS, Plaintiff-Appellant, Bx Cty. Index No. 27241/99 -against- APPELLANT’S BRIEF THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, And JJC CONSTRUCTION CORP., Defendants-Respondents. ---------------------------------------X PRELIMINARY STATEMENT This brief is submitted by plaintiff-appellant Jose Montas in connection with his appeal as a matter of right to this Court [924-925 1 ] from an order of the Supreme Court of the State of New York, Appellate Division, First Department dated February 23, 2012 [904] which, by a 3-2 decision, affirmed the order of the Supreme Court, Bronx County [Geoffrey Wright, J], dated February 18, 2010 and entered on April 12, 2010 [6a-7a], which granted the motion of defendants The City of New York, the New York City Department of Transportation [hereinafter “the City”] and JJC Construction Corp. [hereinafter “JJC”] for a directed verdict and dismissal of the complaint following the conclusion of testimony at trial. For the reasons set forth herein, it is respectfully submitted that the Appellate Division’s order 1 Numerical references in parenthesis are to the pages of the appendix. 2 should be reversed, and that the dissenting opinions of Justice Tom and Acosta should be adopted as according with the governing case law from the other Appellate Divisions and this Court. [931-943] JURISDICTION AND TIMELINESS This appeal is properly before this Court and the case is in final repose given the 3-2 affirmance of the trial Court’s order granting defendants’ motion to dismiss the action at the close of the evidence during a jury trial, for failure to establish a prima facie case. [6a-7a] The appeal is taken as of right based on the dissent of two justices of the First Department on an issue of law [931-943] finding that it was “error for the trial court to direct a verdict dismissing the complaint for failure to establish a prima facie case” and that “the resolution of factual issues by the court deprived plaintiff of his right to a jury trial”. [931] See, CPLR §5601[a]. Accordingly, this appeal is timely, deals with a matter in final repose, and is properly before this Court. BRIEF STATEMENT OF THE CASE Plaintiff Jose Montas, sustained severe personal injuries when he slipped and fell on construction debris as he was traversing a crosswalk at the convergence of three streets, Monroe Avenue, East Tremont Avenue and the Grand Concourse in 3 the Bronx. The accident site was a construction project owned by the City of New York. The City retained JJC as the general contractor to demolish and reconstruct the Grand Concourse overpass and bridge. Mr. Montas testified that as he was crossing the crosswalk and walking near a concrete barrier that separated the worksite from the roadway, he stepped over a piece of wood and as he stepped down with his left foot, it slipped on a sandy substance and other debris [96-97, 292] that was generated from the construction work performed by JJC. [77, 229] As his left foot slipped, it caused him to lose his balance and sustain severe injuries to his right knee. Mr. Ohene Duodo, a project engineer for Department of Transportation [332], testified that as part of the project’s scope of work, JJC was required to remove concrete beams and slabs and pour new concrete to construct the bridge approach and overpass. [335] JJC used a saw to cut the concrete then used either a jackhammer or an excavator to remove the chunks of concrete. [336] The rocks and chunks of concrete would then be hauled away in dump trucks. Over sixty [60] tons of concrete was excavated, chopped, broken up and removed. [814] Most importantly, regardless of who or what created the debris, JJC had the contractual responsibility to clean up the worksite and 4 make sure it was free of debris and waste material, even if the debris was not created by the contractor. [354-356, 385, 389] Mr. Duodo previously testified at his deposition that the sandy substance seen in one of the photographs admitted into evidence was “most likely sand” [498] and if he had seen this condition – depicted in photographs 1 and 2 marked into evidence at trial [901-902], he would have told JJC to clean it up regardless of who caused the hazard because it was a safety issue for pedestrians. [389] Non-party witness Sergio Sanchez, Mr. Montas’s cousin, also testified at trial. Mr. Sanchez was walking with Mr. Montas at the time of his accident and witnessed his fall. He testified that he was aware that they were doing construction work at the location of the accident; he would walk past the site every morning on his way to work. He knew from his own experience working in construction, that machines used to break concrete would create a lot of dust and leave a sandy residue all over the place. The sandy substance that Mr. Montas slipped on was created when JCC was breaking the concrete. [583-584] Mr. Zanfardio, president of JJC, testified that around the time of Mr. Montas’s accident, they were removing or chopping the concrete roadway and removed a thrust block to install a new fire hydrant. The work was done as close as 20 feet away from where Mr. Montas’s accident occurred. [759] Mr. Zanfardino 5 also confirmed that on the day of plaintiff’s accident, workers were grading the southeast area of Tremont, near where the accident occurred, including clearing the area of concrete and rocks from the service road that was chopped out of the curb. The chopped concrete was lifted up onto the dump truck and hauled away. In addition, during the day of the accident, approximately three cubic yards of sand was brought in to bring the manholes seen in the photographs, up to grade. [832, 837, 846-847, 856] Mr. Zanfardino denied that the substance that plaintiff slipped on was the same substance that JJC used as a subbase at the construction project. Instead, the material that plaintiff slipped on was material that was blown from a building across the street that was allegedly undergoing pointing work. [794, 796-797] Despite this clear contradiction in testimony, the trial Court preferred the testimony of Mr. Zanfardino and granted defendants’ motion for a directed verdict and dismissed the complaint. [7a] The trial Court held that plaintiff’s evidence was insufficient to overcome Mr. Zanfardino’s testimony. Equally important, the trial Court held that “there is insufficient evidence of causation to put this dispute before a jury” [7a], obviously crediting the disputed testimony of Mr. Zafardino, that the sandy substance plaintiff slipped on was 6 caused by the brick pointing work that was done across the street, and not by the chopping of concrete done by JJC. In the order appealed from, the majority of the First Department held that the trial Court did not “make credibility determinations or decide factual issues” when it dismissed the complaint. But instead, the trial Court “correctly determined that plaintiff’s self-serving testimony that JJC’s concrete- chopping activities were the source of the greyish-white sand in the street on which he slipped was too speculative to raise an issue of fact.” [927] BRIEF SUMMARY OF ARGUMENT The First Department erred in affirming the trial Court’s order dismissing the complaint because there is evidence from which the jury could have found that defendants were negligent in permitting construction debris to accumulate on a pedestrian walkway and that such negligence was a proximate cause of the accident, thus, it was error for the trial Court to dismiss the complaint for failure to establish a prima facie case. Furthermore, the resolution of factual issues by the trial Court deprived the plaintiff of a fair trial. The motion for a directed verdict should have been denied because based on the testimony in the record, the source of the sandy substance more likely than not emanated from JJC’s excavating, chopping and breaking concrete near the location of 7 the accident; as such, plaintiff has satisfied his burden to have the issue resolved by a jury. Contrary to the majority opinion, the plaintiff clearly is not required to positively exclude every other possible cause of the accident. Rather, the proof must render those other causes sufficiently “remote” or “technical” to enable the jury to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence. A plaintiff need only prove that it was “more likely” or “more reasonable” that the alleged injury was caused by the defendant’s negligence than by some other agency. Gayle v. City of New York, 92 NY2d 936, 937 [1998]. Thus, where there is evidence of a possible cause of the incident for which defendant would be responsible, plaintiff need not exclude every other possible cause of injury. Gayle, supra. The resolution of conflicting evidence must be reserved for the jury, and not be determined by a trial court on a motion for a directed verdict. STATEMENT OF FACTS A. Testimony of Mr. Montas Prior to the date of his accident of September 11, 1999, Mr. Montas was familiar with the area where is accident occurred – at the intersection of Monroe Avenue, East Tremont Avenue and Grand Concourse. [56-57] He was aware that there was a 8 construction project and saw the workers cut concrete slabs with a machine. [58] At the time of his accident, he was walking across the street with his cousin Sergio Sanchez. He saw a wood plank and stepped over it with his left foot. As he started to step down on his left foot, it slipped on a sandy substance and other construction debris such as nuts and bolts, causing him to twist and severely injured his right knee. [95-96, 292] Plaintiff was able to identify several photographs as fairly and accurately depicting the area of his accident, although not necessarily the actual condition of the area, since the photographs were taken sometime after his accident, and there is less debris in the photograph than compared to the time of his accident. [61, 69, 71] Mr. Montas identified a sandy substance in the photograph as having caused his left foot to slip. [75-76] The sandy substance was next to the concrete construction barrier and fence. [88] The plaintiff testified that the sandy substance was generated from cutting and chopping the concrete roadway. [73, 77] He knew that to be true because he had experience working in the construction industry, having performed interior demolition and renovation work in his own construction company. 9 [94, 261-262, 264] This testimony was confirmed by Mr. Sanchez, the plaintiff’s cousin. [583-584] The construction debris came from within the concrete barrier and fence. He specifically recalled seeing a lot of sand that spilled through the fence. In addition, Mr. Montas was sure that the debris did not come from brick pointing work done on a building that was across the street from where his accident occurred. [229, 312] As we will discuss, this testimony conflicted with the testimony of JJC’s president, Mr. Donald Zanfardino, who claimed that the sandy substance that plaintiff slipped on must have come from across the street because they were doing brick pointing work. However, because the trial Court granted defendants’ motion for a directed verdict at the close of evidence, the jury was never given an opportunity to assess the relative credibility of the witnesses and determine whether the plaintiff had slipped on debris that was generated by JJC’s construction work, which it had failed to clean up. B. Testimony of Mr. Duodo Mr. Duodo was employed by the Department of Transportation as a project engineer. He was involved and familiar with the Grand Concourse rehabilitation project. The project called for the removal of the old Grand Course bridge/overpass over East 10 Tremont Avenue and the construction of a new bridge/overpass. The project was performed in four stages by JJC. [331-334] During specific stages, sections of the Grand Concourse would be closed for JJC to remove concrete beams and slabs and install new concrete beams and slabs. A “slab” was defined by the witness as the bridge surface. Beneath the slabs are other structures that support the slab. [335] JJC would use saws to cut the concrete slabs and then use machines like jackhammers or excavators to break up or chop up the concrete into smaller pieces. JJC would then remove the broken concrete by hauling them away in dump trucks. The area of concrete that was removed was very large – measuring at least 180 feet by 200 feet. [336-337] Mr. Duodo then identified Plaintiff’s Exhibit 1, as a photograph of the accident site and work area. [901] He identified the concrete barrier and fence that delineated JJC’s worksite. He also pointed out an area with green rebar that showed the area where concrete was excavated, chopped, broken up and ultimately hauled away: Q. So, the place where the green bars, reinforcement bars, rebars, whatever you are more comfortable with, the place where the green bars are, did you have to take concrete out of there before putting the green bars in? A. Yes. Q. And you took concrete out of that entire area where the green bars are? A. Yes. 11 * * * Q. What work went on where the green rebar is before you put the green rebar down? A. As I said earlier, excavation would take place within his working zone, and then after that, he will exact the subbase, after compaction. You put the compaction, you put the rebars, that’s the work before the rebars. Q. Did the concrete have to get hauled out? A. Yes. Q. How did they do that? A. I said earlier – Q. A Jackhammer. A. He has choices, you can use jackhammer or bring a back hoe to remove it. [339-340] Mr. Duodo then identified the completion contract between the City and JJC [342-343] and specifically noted that the contract called for JJC to promptly remove and clean up all excavated materials, garbage or construction debris, as well as all deposits of concrete and cement material, earth, and sand. [354-356, 385] A lot of sand and concrete was used at this project. [379-380] Referring to the construction debris seen in the photograph [901], Mr. Duodo testified at his deposition that if he had seen the worksite in that condition, he would have told JJC to clean it up, regardless if JJC was responsible for the mess because it was a safety issue. [389, 504-505] The contract also called for JJC to use a subbase, consisting of sand and gravel mixture that was poured in the area where the green rebar was located in the photograph. [380] 12 Mr. Duodo also testified at his deposition that the whitish material seen in the photograph that Mr. Montas slipped on was “most likely sand”, but it was “difficult to tell” so he could not be positive about it. [498, 537] Again, the trial Court’s order granting a directed verdict usurped the jury’s function to determine issues of credibility and assess the weight of the evidence offered by both plaintiff and the defendants. C. Testimony of JJC JJC’s President, Mr. Donald Zanfardino testified at trial that his company was retained to remove the existing bridge and underpass and reconstruct a new bridge at the Grand Concourse. [742] During Phase III of the work, his company removed the asphalt roadway, dug out the existing subbase, installed new subbase and new approach slabs. [752] The subbase, which consisted of recycled concrete and asphalt was spread in the area of the green rebar, which was approximately 15 feet away from the area of plaintiff’s accident. [755-756] Mr. Zanfardiono also confirmed Mr. Duodo’s testimony that JJC removed and chopped the concrete in the area of the green rebar and removed a thrust block in order to install a new fire hydrant in September 1999. The work was done about 20 feet away from the area of plaintiff’s accident. [759] 13 The witness also admitted that his company was contractually responsible for cleanup of the worksite. [760] Referring to JJC’s daily logs, Mr. Zanfardino testified that on September 1, 1999, JJC chopped, broke up and removed a total of 60 tons of rock and dirt from the worksite. [813-814] On September 2, 1999, they excavated concrete and dug trenches for 11½ hours using an excavator, purchased 10 cubic yards of concrete, and used a tamping machine to bang down the subbase, and poured concrete in trenches for Con Edison ducts. [816-819] On September 8, 1999, they brought the excavation site up to grade by using subbase and a blacktop base. [824-825] The next day, JJC graded the southeast section of Tremont Avenue, near the location of plaintiff’s accident with subbase, and graded the manhole areas. They also used an excavator machine for 8-9 hours excavating, chopping and breaking concrete near the area where plaintiff’s accident occurred. [825-827] On the day before the accident, JJC excavated and dug out the concrete in the southeast curb area near where the accident occurred and put down some plastic over the green rebar area. [828-830] Finally, on the day of Mr. Montas’s accident, JJC graded the southeast area of Tremont service road, cleaned up the concrete and rock that was excavated from the service road, 14 chopped out the curb, and built up forms for the asphalt slab. [832, 837] Specifically, with regards to cutting and excavating the concrete near the area of the plaintiff’s accident, Mr. Zanfardino explained that his workers used an electrical saw to cut about a foot deep into the concrete in the area directly next to the barricades, then used a jackhammer or excavator to break up the concrete and then removed it. Sometimes the workers picked up the chunks of concrete with an excavator or a hoe ram – a concrete breaker. [847-848] The broken pieces of concrete were then dumped into the back of a dump truck and hauled away. [849] Mr. Zanfardino conceded that it was JJC’s responsibility to clean up the worksite every day; even if he saw debris outside the worksite, and his company would still be responsible for cleaning it up. [855] Over plaintiff’s objections, the trial Court admitted into evidence five photographs that were never exchanged in discovery by the defendants, and in fact, were taken during the middle of trial, over the weekend before testimony resumed on a Monday. [773] The photographs were of the façade of the building across the street from JJC’s worksite. Defendant JJC sought to introduce them as rebuttal evidence to counter plaintiff’s 15 testimony that the building’s façade was not made out of brick. The trial Court admitted the photographs. [773, 782-783] Without overstating the obvious, this “trial by ambush” tactic by defense counsel was extremely prejudicial, because these photographs were never exchanged at any time before trial 2 and plaintiff was not given adequate notice to prepare. Mr. Zanfardino identified the structure in the photograph as a building that was situated across the street from his construction project. However, he had not personally seen the building for the last 10 years since 2000. He had no idea if the exterior of the building had been changed since that time. Nor did he know that the building was issued a permit in November 1999, after JJC had left the worksite that allowed the building to make changes to the building’s façade. [776-783] Contrary to plaintiff’s testimony, during the time that JJC was working at the site, from 1996-1999, Mr. Zanfardino saw that workers across the street were doing re-pointing work on the façade of the building. Clearly, this conflicted with the fact that a permit for this work was issued months after JJC had left the worksite in November 1999. [779-780] However, the jury was never given an opportunity to assess the credibility of Mr. Zanfardino. 2 When plaintiff objected to the introduction of these photos because they were never exchanged before trial, the trial Court quipped that defense counsel could not exchange them any earlier because they were taken over the weekend. [773] 16 The mortar/cement they used was a grayish color. [794, 796] Sometimes he saw the grayish material inside JJC’s concrete construction barrier, “when it blew into my project”. [797] If this was true, then pursuant to the testimony of Mr. Duodo and Mr. Zanfardino and the construction trade contract, JJC was still responsible for cleaning up the worksite, even if the debris did not arise out of the work of JJC. [348, 354-356, 385, 389, 855] Unfortunately, because the trial Court granted the motion for a directed verdict, the jury was not given an opportunity to assess the weight of this evidence. D. Motions for a Directed Verdict Following Mr. Zanfardino’s testimony, the defendants moved again 3 for a directed verdict, arguing that the evidence before the jury was insufficient to establish a prima facie case against the City and JJC. The trial Court granted the motion and held that there was no evidence to tie the sandy substance that Mr. Montas slipped on to either defendant. The trial Court also noted that Mr. Zanfardino’s testimony “confirmed” that there was another construction project across the street that produced a grayish sandy material that plaintiff could have slipped on. [895] 3 Previously, defendant City moved for a directed verdict after the plaintiff rested. The Court reserved decision. [690-698] 17 Following the dismissal on the record, the trial Court issued a written decision and order, from which the plaintiff had taken an appeal. [6a-7a] The First Department, in a 3-2 decision, affirmed the order and held that the trial Court correctly dismissed the complaint because “the facts show that it is just as likely that the accident was caused by debris from the pointing project as by debris from the roadway project, and any determination by the trier of fact was to the cause of the accident would be based on sheer speculation.” [929] The problem with the First Department’s conclusion is that there was no real proof, admissible or otherwise, of any brick pointing work across the street at the time of the accident, other than the testimony of Mr. Zanfardino, which conflicted with the testimony of the plaintiff. No contracts or other documentary evidence was submitted by the defendants to support this defense. In addition, Mr. Zanfardino’s testimony was inconsistent with a Department of Buildings permit issued to the building across the street to perform work on the façade and exterior of the building after JJC had already left the construction site. The timing of the permit could have raised significant issues of fact as to whether there was any pointing work done across the street at the time of the plaintiff’s 18 accident. This issue should have been resolved by the jury and not on a motion for a directed verdict. ARGUMENT THE FIRST DEPARTMENT ERRED IN AFFIRMING THE TRIAL COURT’S ORDER GRANTING THE DEFENDANTS’ MOTION FOR A DIRECTED VERDICT AND DISMISSING THE COMPLAINT ON THE GROUNDS THAT THERE WAS INSUFFICIENT EVIDENCE OF DEFENDANTS’ NEGLIGENCE IN CAUSING AND CREATING A HAZARDOUS CONDITION THAT WAS A SUBSTANTIAL FACTOR IN CAUSING THE PLAINTIFF’S ACCIDENT A. The Law on Directed Verdicts It is well settled that a trial court’s grant of a motion for a directed verdict pursuant to CPLR §4401 is inappropriate unless the trial court finds, upon the evidence presented, that there exists no rational process by which the factfinder could base a finding in favor of the non-moving party (Vintage, LLC v. Laws Const. Corp., 13 NY3d 847 [2009]; Lang v. Newman, 12 NY3d 868 [2009]; Szczerbiak v. Pilat, 90 NY2d 553 [1997]; Cohen v. Hallmark Cards, 45 NY2d 493, 499 [1980]; Blum v. Fresh Grown, 292 NY 241 [1944]). In considering such a motion, the trial court must afford the party opposing the motion every favorable inference which may properly be drawn from the facts, which must be considered in a light most favorable to him (Verdi v. Top Lift, 50 AD3d 574 [1 st Dept. 2008]). A motion for a directed verdict is appropriate only where there is only one possible conclusion to be drawn from the evidence (Butler v. NYS Olympic, 292 AD2d 748, 19 750 [3d Dept. 2002]; Rhabb v. NYCHA, 41 NY2d 200, 202 [1976]); otherwise, the grant of such a motion is reversible error (Sorrentino v. Fireman, 13 AD3d 122 [1 st Dept. 2004]). Indeed, it is generally improper to grant a motion for dismissal at the close of the evidence, even where same is procedurally weak. See, Rosario v. NYC, 157 AD2d 467, 472 [1 st Dept. 1990]; Vera v. Knolls Ambulance, 160 AD2d 494 [1 st Dept. 1990]. “Issues of negligence, foreseeability and proximate cause involve the kind of judgmental variables which have traditionally and soundly been left to the finders of fact to resolve, even where the facts are essentially undisputed” (Rotz v. NYC, 143 AD2d 301, 304 [1 st Dept. 1988]). Moreover, courts have noted that granting judgment at the close of the proof does not promote judicial economy, since an appellate court that disagrees with the verdict directed by a trial justice has no jury verdict to reinstate, and thus the time spent at trial is wasted (Austin v. Consilvio, 295 AD2d 244 [1 st Dept. 2002]). The better course is to submit the case to the jury (which may return a defendant’s verdict) and then rule on the issue only if the plaintiff prevails (Vera v. Knolls Ambulance, 160 AD2d 494 [1 st Dept. 1990]; Rosario v. NYC, 157 AD2d 467, 472 [1 st Dept. 1990]). 20 In Jacino v. Sugerman, 10 AD3d 593-5 [2d Dept. 2004], the Second Department noted: “At trial, after Sugerman rested, but before Colasurdo rested, Colasurdo moved pursuant to CPLR §4401 to dismiss the complaint and cross-claims. The Supreme Court granted the motion on the ground that Colasurdo had the right of way. We note that a better practice would have been to allow the case to go to the jury and entertain motions for judgment as a matter of law after the jury rendered a verdict [cits.]. There is little to gain and much to lose by granting the motion...after much of the evidence has been submitted to the jury and before the jury has rendered a verdict [cits.]. If the appellate court disagrees, there is no verdict to reinstate and the trial must be repeated...” “A motion to dismiss a complaint at the close of a plaintiff’s case should not be granted merely because there are inconsistencies in the proof or questions of witness credibility. It is the function of the jury to resolve varying inferences which can be drawn from the evidence adduced. The trial court’s function upon a motion for judgment as a matter of law, is not to weigh the evidence...” Colozzo v. LoVece, 144 AD2d 617, 618 [2d Dept. 1988]. This is exactly what the trial Court and the majority of the First Department did in the case at bar, and these errors 21 require a reinstatement of the complaint and a new trial on all issues. The trial Court dismissed the plaintiff’s complaint because it favored Mr. Zanfardino’s testimony and believed that the sandy substance that Mr. Montas slipped on must have been blown across the street from the building that was undergoing brick pointing work and not from the debris that was created when tons of concrete was chopped, broken, lifted, dumped and hauled away by JJC, or when tons of subbase material was brought to the worksite and poured on to the roadway and compacted by heavy machinery. In fact, this was evident in the trial Court’s holding “the Plaintiff’s evidence was much more suggestion than proof regarding the source of the sand. This evidence was met by physical evidence...as well as the testimony of JJC’s witness, who placed another project at the site of the accident, and in describing the dross from the project, matched it to the cause of plaintiff’s fall.” [7a] Likewise, the First Department found that the proof showed that it was just as likely that the accident was caused by debris from the pointing project as by debris from the roadway project performed by JJC, and any determination by the jury as to the cause of the accident, “would be based upon sheer speculation”. [929] This is simply not true. 22 This conclusion ignored significant testimony from Mr. Duodo that JJC excavated the existing concrete near the accident site by breaking it up and hauling it away and from Mr. Zanfardino who confirmed that on the day of the accident JJC chopped the concrete at the curb and cleaned up tons of concrete and rock from the southeast Tremont service road, coupled with the testimony of Mr. Montas and Mr. Sanchez, both with construction experience, that the sandy substance that plaintiff slipped on was caused by JJC’s excavating, chopping and breaking of the concrete near the accident site. In addition, Mr. Montas testified that he was “very very” sure that the sandy substance that he slipped on did not come from across the street, but instead, the debris came from JJC’s construction work to the right side of the concrete barrier and chain link fence. [229] At the very least, assessment of the credibility of the witnesses should have been left for the jury to resolve. See, Conway v. New York City Transit Authority, 66 AD3d 948 [2d Dept. 2009] [“The witnesses’ testimony presented issues of credibility that the jury was in the best position to resolve, based on its opportunity to assess the witnesses”]; Lopez v. New York City Transit Authority, 60 AD3d 529 [1 st Dept. 2009] [Great deference must be accorded to the fact-finding function of the jury, which 23 had the opportunity to see and hear the witnesses and assess their credibility”]. The trial Court should not have granted the defendants’ motion for a directed verdict and the order appealed from should be reversed because “the divergent testimony given by the different witnesses during trial merely serves to establish the existence of credibility issues that the trier of fact was required to resolve in making its findings.” [938] B. Proximate Cause In addition, issues of fact are raised as to proximate cause that should have been resolved by the jury. By affirming the trial Court’s order, the First Department deprived the plaintiff of his right to have this case decided by a jury. A case cannot be dismissed merely because defendants claim that plaintiff’s accident was caused by an independent factor that was not created by them, where there is conflicting evidence of equal weight that suggests otherwise. It is settled case law that where a defendant’s actions set in motion a series of events which leads to an accident, proximate cause with regard to those actions presents a jury question even where other factors also contribute to the accident. See, Derdiarian v. Felix Contr. Corp., 51 NY2d 308, 314-315 [1980]; Griffith v. Southbridge Towers, 248 AD2d 162 [1 st Dept. 1998]; Perez v. NYCHA, 212 AD2d 379 [1 st Dept. 1995]; Faber 24 v. NYCHA, 202 AD2d 269 [2d Dept. 1994]; Santiago v. VIG, 201 AD2d 337 [1 st Dept. 1994]; Shutak v. Handler, 190 AD2d 345 [1 st Dept. 1993]. And, of course, there may be more than one proximate cause of an accident (Pardo v. Bialystoker, 308 AD2d 384 [1 st Dept. 2003]; Lopez v. 1372 Shakespeare Ave., 299 AD2d 230 [1 st Dept. 2002]; Blass v. Mi Hong, 240 AD2d 187 [1 st Dept. 1997]; Mohamed v. NYC, 205 AD2d 415 [1 st Dept. 1994]; Joyce v. Rumsey Realty, 17 NY2d 118, 122 [1966]; Robinson v. NAB Constr., 210 AD2d 86 [1 st Dept. 1994]). In Gayle v. City of New York, 92 NY2d 936 [1998], the plaintiff was injured when his car skidded on a wet roadway and collided with a parked trailer. There were no eyewitnesses and plaintiff could not recall much of the incident. Relying primarily on circumstantial evidence, plaintiff argued that a large puddle formed on the roadway due to defendant’s negligence in maintaining a proper drainage system and that this was a proximate cause of the accident. The jury returned a verdict for plaintiffs and absolved plaintiff Kenneth Gayle of all negligence. In a 3-2 decision, the Second Department reversed the judgment and dismissed the complaint, finding that plaintiffs failed to meet their burden of proof on the issue of proximate cause. The majority concluded that “[t]here are many other just 25 as plausible variables and factors which could have caused or contributed to the accident * * * none of which were ruled out by the plaintiffs”. Gayle v. City of New York, 247 AD2d 431 [2d Dept. 1998]. This Court reversed and held that the Second Department: erred in determining that plaintiffs were required to rule out all plausible variables and factors that could have caused or contributed to the accident. Plaintiffs need not positively exclude every other possible cause of the accident. Rather, the proof must render those other causes sufficiently “remote” or “technical” to enable the jury to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence. A plaintiff need only prove that it was “more likely” or “more reasonable” that the alleged injury was caused by the defendant’s negligence than by some other agency. 92 NY2d at 937 [citations omitted] [emphasis supplied]. See also, Derdiarian, supra; Burghardt v. Cmaylo, 40 AD3d 568 [2d Dept. 2007]; Madeiasevici v. Daccordo, 34 AD3d 651 [2d Dept. 2006]; Hyde v. LIRR, 277 AD2d 425 [2d Dept. 2000], Forte v. Albany, 279 NY 416, 422 [1939]; and Blass v. Hong, 240 AD2d 187 [1 st Dept. 1997]. In Hyde, plaintiff claimed he tripped over a pipe protruding from the ground; at his deposition, he testified at times that he remembered nothing about his fall and never came into contact with the pipe before it; the Court noted his diminished cognitive skills, and found that his admissions were not determinative. The defendant pointed out that in an 26 affidavit submitted by plaintiff’s expert in a related medical malpractice action, it was stated that plaintiff would not have fallen had he been properly diagnosed with cerebral vascular disease. But the Court, in rejecting that argument, wrote “That affidavit, however, does not preclude, as a matter of law, the possibility that there were other proximate causes of the injured plaintiff’s fall, such as the protruding pipe...It is well settled that there can be more than one proximate cause of a plaintiff’s injuries.” In Forte, plaintiff was injured when he struck negligently maintained pillars and columns on a bridge, but the accident was precipitated by a 6” defect in the roadway. The defendant which owned the bridge moved for dismissal, arguing that it did not have responsibility for the condition of the roadway. This Court specifically stated (id. at 416, 421): The 6” defect in the road, the darkness under the bridges, the absence of adequate warning signs and the position of the steel pillars on the edge of the brick pavement only 16’ wide constituted a situation which the jury could have found to be dangerous and which required the respondents to guard travelers from. A question of fact existed as to whether the respondents had exercised reasonable care to protect travelers on the highway from a danger which they were parties in creating and maintaining...We are also of the opinion that the 6” rise in the highway cannot be said, as a matter of law, to have been the sole proximate cause of the accident. The jury under the facts of this case would have been justified in finding that there was more than one efficient proximate cause of the accident without which it would not have happened. 27 In Szala v. Szala, 31 AD3d 423-5 [2d Dept. 2006], plaintiff tripped and fell on a doll as she descended stairs in defendant’s home; she sued the defendant, who moved for summary judgment, asserting he had no notice of the presence of the doll, and that the absence of a handrails could not be a competent producing cause of the accident. The trial court granted the motion, but the Second Department reversed, citing to prior decisional law concerning accidents with more than one cause, and concluding, “Even if the fall was precipitated by a misstep, given the plaintiff’s testimony that she reached out to try to stop her fall, there is an issue of fact as to whether the absence of handrails was a proximate cause of her injury.” We note that this rule is not new (Sweet v. Perkins, 196 NY 482 [1909]), and has been repeatedly recognized by this Court (Argentina v. Emory WDC, 93 NY2d 554 [1999]) as well as the other Appellate Divisions. See, Harris v. Jackson, 30 AD3d 1027 [4 th Dept. 2006]; Esposito v. Wright, 28 AD3d 1142 [4 th Dept. 2006]; Pardo v. Bialystoker, 308 AD2d 384 [1 st Dept. 2003]; Rowe v. Harrison, 303 AD2d 863 [3d Dept. 2003]; Deshaies v. Prudential, 302 AD2d 999 [4 th Dept. 2003]; Francis v. NYCTA, 295 AD2d 164 [1 st Dept. 2002]; Bush v. Lamb-Graze Harbor, 246 AD2d 768 [3d Dept. 1998]. Also relevant is Cruz v. NYC, 218 AD2d 546 [1 st Dept. 1995], where plaintiff, after his vehicle was disabled on the FDR Drive 28 by a pothole, got out of the car and was struck by Muriel Alleyne’s vehicle; Ms. Alleyne was convicted of DWI and assault in the second degree, and the City moved for summary judgment, claiming that her actions were the sole cause of the accident. The trial court granted the motion but the First Department reversed, citing to this Court’s Derdiarian decision, finding that this sort of accident could be deemed a foreseeable consequence of City’s negligent failure to properly maintain the highway. Thus, where there is evidence of a possible cause of the incident for which defendant would not be responsible, plaintiff need not make a showing with absolute certitude that defendant’s acts or omissions were a substantial factor in causing his/her injuries, nor must a plaintiff exclude every other possible cause of injury. Deridian, supra; Gayle, supra. In this vein, we submit that plaintiff’s proof was sufficient to be resolved by a jury. “Circumstantial evidence is not a disfavored form of proof and, in fact, may be stronger than direct evidence when it depends upon undisputed evidentiary facts about which human observers are less likely to err...or to distort” [People v. Geraci, 85 NY2d 359, 369 [1995]]. In New York, liability in a personal injury case may be established based solely on circumstantial evidence. See, Clarke v. NYC, 295 NY 861 [1946]; Klein v. LIRR Co., 303 NY 807 29 [1962]; Scantlebury v. Lehman, 305 NY 703 [1953]; Stein v. Palisi, 308 NY 293 [1955]; Cruz v. LIRR Co., 226 NY2d 927 [1970]. “The law does not require that plaintiff’s proof positively exclude every other possible cause but defendant’s negligence” Schneider v. Kings Hwy. Hospital Center, 67 NY2d 743-4 [1986]; Ingersoll v. Liberty Bank of Buffalo, 278 NY 1, 7 [1932]; Rosenberg v. Schwartz, 260 NY 162, 166 [1932]; see generally, Cornbrooks v. Terminal Barber Shops, Inc., 282 NY 217 [1940]; Dillon v. Rockaway Beach Hospital, 284 NY 176, 179 [1940]; Betzag v. Gulf Oil Corp., 298 NY 358, 364-5 [1949]]. Circumstantial evidence is sufficient to support the intended inference if it renders such inference more probable than not. See, Ingersoll v. Liberty Bank of Buffalo, supra; Restatement [2d] of Torts, §433[b], comment b; see generally, Mertsaris v. 73 rd Corp., 105 AD2d 67 [2d Dept. 1984]. As the Prosser-Keaton hornbook cogently notes: “The plaintiff need not negative entirely the possibility that the defendant’s conduct was not a cause, and it is enough to introduce evidence from which reasonable persons may conclude that it was more probable that the event was caused by the defendant than that it was not...If, as a matter of ordinary experience, a particular act or omission might be expected, under the circumstances, to produce a particular result, and that result in fact has 30 followed, the conclusion may be permissible that the causal relation exists” [Prosser & Keaton on Torts, 5 th ed., §39]. Moreover, that two or more scenarios are theoretically possible does not mean that all are equally probable. See, Gonzalez v. NYCHA, 77 NY2d 663,670 [1991]; Torelli v. NYC, 176 AD2d 119 [1 st Dept. 1991], lv. den., 79 NY2d 754 [1992]. A jury can and should utilize its own common sense or what this Court has termed “the logic of common experience” in determining that the negligence was more probably than not a proximate cause of plaintiff’s injury. And, “The law does not require that plaintiff’s proof positively exclude very other possible cause of the accident but defendant’s negligence. Rather, her proof must render those other causes sufficiently remote or technical to enable the jury to reach its verdict based...upon logical inferences to be drawn from the evidence” [Schneider v. Kings Hwy Hospital Center, supra at 745]. In Ingersoll v. Liberty Bank of Buffalo, supra, the decedent, who had evidently attempted to carry a large box down the subject stairway, was found inert at the foot of the stairway. The witness who found him observed that a piece had broken off the tread of the second step from the bottom [278 NY at 5]. The obvious inference notwithstanding, defendant might have fainted or suffered a heart attack, since decedent had said, “Something gave away in here” and pointed to his chest 31 [id.]. This Court found such explanation “possible” [id. at 7,8], but held that a jury could nonetheless conclude that plaintiff’s theory -- that decedent fell due to the defective stair from which a piece had broken off -- was more likely. In Gonzalez v. NYCHA, supra, decedent had been beaten and murdered in her apartment. There were no witnesses to the attack. Decedent was found bound and gagged; none of the neighbors claimed to have heard any scream or struggle. Plaintiff, pointing to the injuries and the manner in which the body was found, urged that the jury could infer that it was more probable than not that decedent had consciously suffered. Defendant, relying on an autopsy report showing a contusion of the scalp, countered that it was possible that decedent had been struck suddenly from behind and had not regained consciousness; thus, it was speculation to assume that decedent had suffered. This Court, however, affirmed an award in plaintiff’s favor, finding it hardly likely that the assailants would take the time to bind and gag a woman who was already unconscious or dead; thus, the jury could fairly conclude from the circumstantial evidence that the decedent more probably than not had suffered. See generally, Burgos, supra; Gayle, supra. Three decisions dramatize the power of circumstantial evidence: Colon v. Citicorp Investment, 283 AD2d 193 [1 st Dept. 2002], Greenberg v. NYCTA, 290 AD2d 412 [2d Dept. 2002] and Ford 32 v. Mizio, 274 AD2d 329 [1 st Dept. 2000]. In Colon, plaintiff fell on an oily substance near a paper shredder at a Citicorp premise; she claimed that a man who had come in the previous day to service the machine had created the condition; the serviceman testified that he used a very small amount of lubricant on a piece of paper; plaintiff testified that the oil puddle was 1’ in diameter; the serviceman asserted that he could not have produced such a large puddle, and that he checked before he left and found no oil on the floor; moreover, over 100 Citicorp employees had access to the machine and would place oil on it from a bottle kept on the machine. However, the Court affirmed the denial of summary judgment for the service company, finding that its claims that its employee could not have caused the spill were “mere supposition.” In Greenberg, the trial court granted judgment dismissing plaintiff’s case at the close of the proof pursuant to CPLR §4401. The plaintiff was an engineer who had worked for the Transit Authority for years, and had been taking the A train to work. On the day in question, he fell on a soapy substance on the floor of a car of an A train. There was no definitive proof as to who placed the substance there, but there was also no evidence of a broken bottle or container, and plaintiff was prepared to testify that he personally knew that A trains would be cleaned at the Lefferts Boulevard station. The Transit 33 Authority denied that any cleaning was done on the day of the accident. Plaintiff’s counsel argued, and the Court agreed, that it was unlikely that some altruistic individual had decided to scrub the floor of that particular car, and therefore it was inferable that the soapy substance was the residue of negligent cleaning procedures employed by the Transit Authority. The Court found that the plaintiff’s testimony “should have been admitted as circumstantial evidence that the defendant engaged in that routine on the morning in question and thereby created the hazardous condition...” In Ford, plaintiff in a slip and fall case was dismissed when she failed to sue the owner of a fruit stand on the theory that he caused the ice condition by throwing water onto the sidewalk; she subsequently sued her attorney for malpractice. Defendant moved to dismiss at the close of plaintiff’s proof on the ground that it was speculation to argue that the habit of throwing the water on the street caused the ice condition; the trial court agreed and dismissed the malpractice claim, finding that “Plaintiff failed to make a prima facie showing of legal malpractice whether she would have been successful in her underlying personal action.” The First Department reversed, declaring [id. at 330]: During trial, plaintiff testified that, as she stepped off the sidewalk in front of the fruit stand onto the roadway, she “slipped and fell on the ice.” Although 34 plaintiff could not say what caused the ice to accumulate, she presented the testimony of Mary Italiano, the owner of the store next to the fruit stand, who assisted plaintiff on the day of her accident, and testified, in pertinent part, that the operators of the fruit stand had a habit of emptying buckets of water into the street, even when the temperature was below freezing. Evidence was also introduced at trial that there had been no precipitation on the day off the accident or the preceding three days, but that the temperature was at the freezing point... Considering such evidence in a light most favorable to the plaintiff, there was sufficient evidence presented on plaintiff’s case from which a jury could reasonably infer that the operators of the fruit stand engaged in acts that created the dangerous condition on which she fell. Ms. Italiano’s testimony that she did not recall whether the water was thrown into the street the day before or on the day of the accident did not bar an inference that the operators of the fruit stand threw water out on those days, and created a factual issue for the jury to resolve. Accordingly, plaintiff sufficiently established her probability of success in the underlying action. In the case at bar, the City and JJC both argued at trial and the trial Court agreed, that the sandy substance that plaintiff slipped on could have been debris that was blown over from across the street to the area of the accident, and not caused by the excavating, chopping and breaking of the concrete that was done on the day of the accident. However, this contention was contradicted by plaintiff’s testimony and that of his cousin that no brick pointing work was done across the street. Moreover, plaintiff had obtained a building permit issued to the building across the street to perform work on the 35 building’s façade several months after JJC had already vacated the worksite in November 1999. [782-783] Clearly, if the trial Court could accept Mr. Zanfardino’s testimony that he observed the grayish substance “when it blew into my project” from across the street [797], then it is just as likely that the sandy substance was blown over from JJC’s own worksite. In fact, this scenario is more likely because there was undisputed testimony that on the day of the accident, JJC was excavating and chopping concrete near the accident location, and there was nothing but speculation to support defendants’ argument that there was brick pointing work being performed on the day of the accident. In this regard, no documentary evidence was submitted by the defense to establish that there was any such work going on across the street. We acknowledge that circumstantial evidence cannot be used to overcome evidentiary gaps in a party’s proof, for otherwise a verdict would be based on speculation rather than logical inferences drawn from the evidence (Bernstein v. NYC, 69 NY2d 1020, 1022 [1987]; Feblot v. NY Times Co., 32 NY2d 486,494 [1973]; Doherty v. King Cullen, 261 AD2d 568 [2d Dept. 1999]). Even plausible circumstantial evidence cannot establish a conclusion where the opposite inference is equally probable. See, DiGelormo v. Weil, 260 NY 192, 199-200 [1932]; Gomes v. Courtesy Bus Co., 251 AD2d 625 [2d Dept. 1998]; Catlyn v. Hotel 36 & 33 Co., 230 AD2d 655 [1 st Dept. 1996]; Rivera v. Adinolfi, 249 AD2d 55, 57 [1 st Dept. 1998]; Lynn v. Lynn, 216 AD2d 194 [1 st Dept. 1995]; Rojas v. Lynn, 218 AD2d 611 [1 st Dept. 1995] (Tom, conc.). Thus, the defendants’ speculation that the sandy substance that caused plaintiff’s accident could only have come from the brick pointing work that was performed across the street, which started several months after plaintiff’s accident, fails. In this regard, it was error for the trial Court in deciding a motion for a directed verdict to prefer Mr. Zanfardino’s version of how the sandy substance came about at the accident location and ignore plaintiff’s proof to the contrary. It has long been the rule in New York that a jury need not accept in full the version of the incident given by either party, but may choose what portion of the evidence to accept and what inferences to draw therefrom, and render its verdict on such evidence and inferences. See, Salamone v. Yellow Taxi Corp., 242 NY 251 [1925]; Carroll v. Wolfe, 35 AD2d 842 [2d Dept. 1970]; Serra v. Bonofiglio, 26 AD2d 955 [2d Dept. 1966]; Burd v. Bleischer, 208 AD 499 [4 th Dept. 1924]. Even uncontradicted testimony need not be accepted by a jury. Brady v. City of NY, 39 AD2d 600 [2d Dept. 1972]; Trimble v. City of NY, 275 AD 169 [2d Dept. 1949], app. den., 299 NY 800 [1949]. 37 This Court has held that the “trier of fact is free to disbelieve [even] uncontroverted testimony”. Matter of Nowakowski, 2 NY2d 618, 622 [1957], quoting N.Y. Bankers v. Duncan, 257 NY 160 [1931]. The primary focus of the trial Court’s attack of plaintiff’s proof is the simple argument that plaintiff’s proof as to proximate cause was insufficient because the trial judge personally did not believe that the sandy substance could have come from JJC’s excavation, chopping and breaking of concrete. Clearly, the trial judge usurped the jury’s right to resolve conflicts in the evidence and to make inferences that emanated from those conflicts. This is simply not the proper method to decide a motion for a directed verdict. The trial Court failed to recognize that the jury was not required to accept the testimony of the defense witnesses, given the testimony to the contrary – especially the testimony of Mr. Montas and the fact that a building permit was issued several months after the accident. This was a pure credibility determination, and this Court has repeatedly held that a reviewing court should not reject a party’s proof in determining a motion for directed verdict, but instead view it in a light most favorable to the party opposing the motion. Szczerbiak, supra. In reality, what the trial judge did here was to resolve disputed question of fact. 38 Likewise, the First Department’s affirmance was erroneous and should be reversed as a matter of law. We believe that the evidence was plainly sufficient and the complaint should not have been dismissed simply because the trial judge personally did not agree with plaintiff’s theory of liability. The trial Court’s ruling usurped the jury’s function to resolve competing evidentiary claims, and was therefore, improper. The types of “judgmental variables” necessitating submission of an issue of fact to a jury include not only the need to weigh competing evidence, but also the need to assess the credibility of the witnesses. In directing the verdict here, even at the close of evidence, the trial Court failed to recognize the presence of issues of fact regarding the credibility of witnesses. As we discussed above, a jury is entitled to simply reject the credibility of any witness, in part or in whole (see 1A PJI 1:37). The jury need not accept testimony offered by a party simply because the opposing party offered no contrary testimony (see Brennan v. Bauman & Sons Buses, Inc., 107 AD2d 654 [2d Dept. 1985]). “If everything or anything had to be believed in court simply because there is no witness to contradict it, the administration of justice would be a pitiable affair” (id., at 655). The jury was fully entitled to reject defendant JJC’s 39 claims in their entirety, if it so chose; it could even have rejected the assertion that the sandy substance that plaintiff slipped on came from across the street. In directing a verdict on the negligence issue, the trial Court was in effect finding that the sandy substance that plaintiff slipped on did come from the brick pointing work. Yet, this preference of defendants’ proof is contrary to the rule that it is the jury, not the court, that is the finder of fact, with the authority to accept or reject evidence. The jury may have decided that it believed the testimony of Mr. Montas and Mr. Sanchez as to causation. However, by directing a verdict in defendants’ favor, the trial Court prevented the jury from independently assessing the evidence as it was required to do. The prospect of resolving an issue as a matter of law based upon undisputed evidence can be appealing. Indeed, courts have granted summary judgment based upon fact claims which a defendant could not controvert because no one other than the plaintiff was present at the time (see e.g. Yurkovich v. Kvarner Woodworking, Inc., 289 AD2d 183 [1 st Dept. 2001]). Yet, where disputed factual assertions and matters of credibility are presented at trial, courts should guard against bypassing the role of the jury as assessors of the evidence. 40 In this case, as in most cases, evaluation of the evidence included the obligation to evaluate the credibility of each witness. Our civil justice system is based upon the principle that it is the jury that determines issues of fact, “decid[ing] what has or has not been proved” (1A PJI 1:6). It being the task of the jury to make findings of fact, even where the trial court perceives the facts to be entirely one-sided, the far better course is to leave to the jury the initial determination respecting issues of negligence, foreseeability and proximate cause, at least in the first instance. Even where the court perceives the facts to be entirely one-sided, it always has the option of thereafter granting a judgment notwithstanding the verdict, provided it allows a jury verdict to be taken (CPLR 4404[a]). This cautious approach to a trial court’s independent assessment of the evidence allows for the possibility that the reviewing appellate court will disagree with the trial court’s view of the evidence, while protecting against the prospect that a new trial will be required. 41 CONCLUSION Based on the foregoing, the order appealed from should be reversed, the complaint reinstated and the matter remanded for a new trial on all issues. Respectfully submitted, THE LAW OFFICE OF WILLIAM A. GALLINA Attorneys for Plaintiff-Appellant By: _________________________________ Brian J. Isaac, Esq. POLLACK, POLLACK, ISAAC & DECICCO Appellate Counsel 225 Broadway, Suite 307 New York, New York 10007 212-233-8100 Brian J. Isaac, Esq. Michael H. Zhu, Esq. Of Counsel