Jose Montas, Appellant,v.JJC Construction Corporation, et al., Respondents.BriefN.Y.January 2, 2013Bronx 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. REPLY 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: July 9, 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 CONCLUSION .................................................. 32 ii TABLE OF AUTHORITIES State Cases Acevedo v. Morton West Assoc., 227 AD2d 280 [1 st Dept. 1996]............................................. 17 Annino v. City of Utica, 276 NY 192 [1937].................... 28 Archie v. Todd Shipyards Corp., 65 AD2d 699 [1 st Dept. 1978]............................................. 13 Backiel v. Citibank, 299 AD2d 504 [2d Dept. 2002]............. 30 Bernstein v. NYC, 69 NY2d 1020 [1987]......................... 13 Berrios v. 735 Ave. of Amer., 82 AD3d 552 [1 st Dept. 2011]............................................. 14 Bingham v. New York City Transit Authority, 99 NY2d 355 [2003] ...................................... 25, 26 Blake v. City of Albany, 48 NY2d 875 [1979]................... 18 Boylhart v. DiMarco & Reimann, 270 NY 217 [1936].............. 29 Brady v. City of NY, 39 AD2d 600 [2d Dept. 1972].............. 12 Brennan v. Bauman & Sons, 107 AD2d 654 [2d Dept. 1985]........ 13 Brusso v. City of Buffalo, 90 NY 679 [1882]................... 28 Cahn v Ward Trucking, Inc., 95 AD3d 466 [1 st Dept. 2012]......................................... 20, 22 Camacho v. Ezras Yisrael, Inc., 221 AD2d 275 [1 st Dept. 1995]............................................. 23 Caraballo v. Paris Maintenance, 2 AD3d 275 [1 st Dept. 2003].............................................. 6 Clarke v. Donovan, 34 AD2d 1099 [4 th Dept. 1970] ............... 9 Clarke v. NYCTA, 174 AD2d 268 [1 st Dept. 1991] ................ 14 Cook v. Rezende, 32 NY2d 596 [1973]........................... 19 Crosby v. Ogden Services Corp., 236 AD2d 220 [1 st Dept. 1977]............................................. 23 iii Cucuzza v. NYC, 2 AD3d 389 [2d Dept. 2003]..................... 6 D’Ambrosio v. NYC, 55 NY2d 454 [1982]......................... 19 Deming v. Terminal RR of Buffalo, 169 NY 1 [1901]............. 28 DeSilva v. NYC, 15 AD3d 252 [1 st Dept. 2005] ................... 4 Detres v. New York City Housing Authority, 271 AD2d 309 [1 st Dept. 2000]................................. 6 Dickerhof v. Port Authority of N.Y. & N.J., 174 AD2d 506 [1 st Dept. 1991]................................ 23 DiGelormo v. Weil, 260 NY 192 [1932]........................... 7 Endres v. Mingles Rest., 95 NY2d 845 [2000]................... 17 Farrell v. Prentice, 206 AD2d 799 [3d Dept. 1994]............. 18 Fish v. Waverly Elec. Light & Power Co., 189 NYS 366 [1921] .......................................... 23 Genen v. Metro-North Commuter Railroad, 261 AD2d 211 [1 st Dept. 1999]............................................. 23 Glanzer v. Shepard, 233 NY 236 [1922]......................... 23 Gluszak v. Raytone Plumbing, 15 AD3d 439 [2d Dept. 2005]....... 6 Gonzalez v. NYCHA, 77 NY2d 663 [1991].......................... 3 Gordon v. American Museum of Natural History, 67 NY2d 836 [1986] .......................................... 17 Granville v. NYC, 211 AD2d 195 [1 st Dept. 1995] ............... 19 Guzman v. Strab Constr., 228 AD2d 645 [2d Dept. 1996].......... 6 Huston v. County of Chenango, 258 AD 56 [1937], aff’d, 278 NY 646 [1938] .................................... 25 Infante v. NYC, 258 AD2d 333 [1 st Dept. 1999] ................. 20 Irizarry v. 15 Mosholu Four, LLC, 24 AD3d 373 [1 st Dept. 2005]............................................. 17 Jiminez v. Cummings, 226 AD2d 112 [1st Dept. 1996]............ 23 iv Lichtman v. Grossbard, 73 NY2d 792, 537 NYS2d 19, 533 N.E.2d 1048 [1988] ...................................... 26 Lopes v. Rostad, 45 NY2d 617 [1978]........................... 28 MacPherson v. Buick Motor Co., 217 NY 382 [1916].............. 23 Mann v. Hunt, 283 AD 140 [3d Dept. 1953]....................... 9 Mazerbo v. Murphy, 52 AD3d 1064 [3d Dept. 2008]............... 18 McDermott v. Coffee Beanery, Ltd., 9 AD3d 195 [1 st Dept. 2004]............................................. 10 McNally v. Sabban, 32 AD3d 340 [1 st Dept. 2006] ............... 13 Morales v. County of Nassau, 94 NY2d 218 [1999]............... 25 Muong v. 550 Ocean Ave., LLC, 78 AD3d 797 [2d Dept. 2010] ........................................... 5, 6 Matter of Nowakowski, 2 NY2d 618 [1957]....................... 13 NY Bankers v. Duncan, 257 NY 160 [1931]....................... 13 Ohanessian v. Chase Manhattan Realty, 193 AD2d 567 [1 st Dept. 1993]............................................. 19 Palka v. Service Master, 83 NY2d 579.......................... 22 Park v. Caesar Chemists, 245 AD2d 425 [2d Dept. 1997]......... 18 Peretrich v. NYC, 263 AD2d 410 [1 st Dept. 1999] ............... 19 Perrino v. Entergy Nuclear, 48 AD3d 229 [1 st Dept. 2008] ...... 17 Pettingill v. City of Yonkers, 116 NY 558 [1889].............. 28 Pippo v. City of New York, 43 AD3d 303 [1 st Dept. 2007] ....... 13 Powell v. City of New York, 250 AD2d 409 [1 st Dept. 1998] ..... 28 Punsky v. NYC, 129 AD 558 [2d Dept. 1908]..................... 13 Reilly v Newireen Assoc., 303 AD2d 214], lv denied, 100 NY2d 508 [2003] .............................. 22 Rivera v. 4064 Realty Co., 17 AD3d 201[1st Dept. 2005], lv. denied, 5 NY3d 713 [2005] ............................... 10 v Rogers v. Dorchester Assoc., 32 NY2d 553 ].................... 18 Rosas v. 397 Bway., 19 AD3d 574 [2d Dept. 2005]............... 17 Rosendale v. Galin, 266 AD2d 444 [2d Dept. 1999].............. 25 Roussos v. Ciccotto, 15 AD3d 641 [2d Dept. 2005].............. 17 Rupp v. NYCTA, 15 AD2d 1800 [2d Dept. 1962]................... 28 Sam v. Town of Rotterdam, 248 AD2d 850 [3d Dept. 1998]........ 24 Sanchez v. State, 99 NY2d 247 [2002].......................... 18 Schneider v. Kings Hwy. Hospital Center, 67 NY2d 743 [1986] ........................................... 3 Sciolaro v. Ash, 198 NY 77 [1910]............................. 29 Sheehan v. Rubenstein, 164 AD2d 663 [2d Dept. 1989]........... 19 Sobel v. City of New York, 9 NY2d 187 [1961].................. 28 Storrs v. City of Utica, 17 NY 104 [1858]................. 28, 29 Tashjian v. Strong & Assoc., 225 AD2d 907 [3d Dept. 1996]..... 19 Torelli v. NYC, 176 AD2d 119 [1 st Dept. 1991], lv. den., 79 NY2d 754 [1992] ................................. 3 Torres v. City of New York, 83 AD3d 577 [1 st Dept. 2011] ....... 4 Trimble v. City of NY, 275 AD 169 [2d Dept. 1949], app. den., 299 NY 800 [1949] ................................ 12 Turner v. Newburgh, 109 NY 301 [1888]......................... 28 Turso v. Stein, 284 AD2d 390 [2d Dept. 2001]................... 6 Uvaydova v. Welsbach Electric Corp., 275 AD2d 776 [2d Dept. 2000] ............................................. 22 Vasquez v. RVA Garage, 238 AD2d 407 [2d Dept. 1997]........... 18 Weigand v. United Traction Co., 221 NY 39 [1917].............. 18 Weil v. 237 E. 57 St., 233 AD2d 449 [1 st Dept. 1996] .......... 19 Weisenthal v. Pickman, 153 AD2d 849 [2d Dept. 1989]........... 17 vi Weiss v. Fote, 7 NY2d 579 [1960].............................. 28 Wolf v. NYC, 39 NY2d 568 [1976]............................... 18 Wright v. Tudor City, 276 NY 303 [1938]....................... 29 Zelaya v. Breger, 43 AD3d 437 [2d Dept. 2007]................. 17 Zisa v. City of New York, 39 AD3d 313 [1 st Dept. 2007] ........ 17 State Statutes CPLR 4404[a].................................................. 31 1 COURT OF APPEALS THE STATE OF NEW YORK --------------------------------------------X JOSE MONTAS, Plaintiff-Appellant, Bx Cty. Index No. 27241/99 -against- REPLY 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 response to the briefs submitted by defendants-respondents The City of New York, the New York City Department of Transportation [“the City”] and JJC Construction Corp. [“JJC”], and in further support of his appeal as a matter of right to this Court [924-925] 1 from an order of the Supreme Court, 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 for a directed verdict and dismissal of the complaint following the conclusion of testimony at trial. 1 Numerical references in parenthesis are to the pages of the appendix. 2 Assuming familiarity with the briefs before this Court, we respond directly to the issues raised in the respondents’ briefs. [a] JJC claims that the First Department properly affirmed the trial Court’s order dismissing the action at the conclusion of the trial because the plaintiff failed to “establish a prima facie case of negligence, as he was unable to provide any competent evidence that anything Defendant-Respondents did was the proximate cause of his injury”. [JJC Brief at p. 24] Nothing could be further from the truth. In our main brief, we outlined the trial testimony of the various witnesses [Brief at pp. 7-16], which when viewed holistically, created significant factual issues regarding the source of the sandy substance that caused Mr. Montas to slip and fall. The defendant’s analysis of the trial evidence, just like the majority of the First Department and the trial Court below, is skewed and unfair. It does not construe the evidence in a light most favorable to the plaintiff, nor does it accord plaintiff the benefit of every favorable inference which may be drawn from the evidence. In fact, rather than accepting the plaintiff’s evidence as true, defendants’ characterize it as “speculative” and unworthy of belief. [JJC Brief, at p. 27] 3 This is not a proper way to support a motion for a directed verdict at the close of the evidence at trial. [b] While JJC correctly states that in establishing proximate cause, a plaintiff needs to show that the alleged injury was caused more likely by the defendant’s negligence than by some other agency [Brief at p. 24-28], it fails to recognize that this was exactly what the plaintiff did below. Defendants incorrectly assert that “plaintiff has provided nothing but speculation as to the cause of his accident”. [JJC Brief at p. 28] Contrary to JJC’s arguments here, plaintiff is not required to “positively exclude every other possible cause but defendant’s negligence”. Schneider v. Kings Hwy. Hospital Center, 67 NY2d 743-4 [1986]. 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]. These issues should have been reserved for the jury, who can use its own common sense or what this Court has termed “the logic of common experience” to determine whether defendants’ negligence was more probably than not a proximate or substantial cause of plaintiff’s injury. 4 In Torres v. City of New York, 83 AD3d 577 [1 st Dept. 2011], plaintiff sustained severe personal injuries when she tripped and fell on a roadway defect caused by work performed by defendant Con Ed, who claimed that it did no construction work at the accident location. Plaintiff opposed the motion and submitted work permits issued to Con Ed and photographs showing work performed in the area where the accident took place. The trial Court granted defendant’s motion dismissing the complaint. The First Department reversed and reinstated the plaintiff’s complaint, noting: Although Con Ed denies that it ever worked at the exact location of the accident, its records indicate that in 2005 codefendant and cross claimant the City of New York issued several permits to Con Ed to perform work requiring excavation and repaving of the street at the intersection where plaintiff fell. The City’s witness testified that, apart from the City’s repair of two potholes nearby on Walton Avenue in 2006, there was no record of any street work in the vicinity of the intersection in 2005 and 2006 by any party other than Con Ed. Similarly, in in DeSilva v. NYC, 15 AD3d 252, 254 [1 st Dept. 2005], the First Department held: Summary judgment should have been denied to defendant Con Edison. In October 1999, three months before plaintiff tripped and fell on the manhole cover, Con Edison had been issued a permit to repair a gas line at the “roadway and/or sidewalk of Broadway and Warren Street”, the area where plaintiff fell. Further, the record reveals that in response to a complaint that a manhole cover on Broadway between Warren and Murray Street was “popping up” when vehicles ran over it, this defendant had removed and replaced one of its manhole covers. A Con Edison employee testified that he did not 5 know what they did with the cover that they had replaced. This evidence, while circumstantial provides a sufficient link between Con Edison and the hazardous condition that caused plaintiff’s injury to preclude summary judgment in favor of the defendant. In Muong v. 550 Ocean Ave., LLC, 78 AD3d 797 [2d Dept. 2010], the plaintiffs’ decedent, was attacked and robbed in an outdoor passageway on the premises of 550 Ocean Avenue, the apartment building in which he lived. The decedent lost consciousness during the attack and, when he was revived, he had no memory of the incident. He died of his injuries four days later. The plaintiffs alleged that the decedent had been attacked just inside the gate to the passageway and that the lock to that gate was frequently broken. The defendants moved for summary judgment dismissing the complaint, arguing, inter alia, that the plaintiffs did not know how or where the attack occurred and, therefore, could not establish that any negligence on the part of the defendants was a proximate cause of the decedent’s injuries. The trial Court granted the motion, but the Second Department reversed, holding: The defendants failed to meet their burden, inter alia, of establishing, prima facie, that Hop’s injuries were not proximately caused by their negligence. The evidence submitted by the defendants themselves indicated that Hop was found several feet inside the gate with grocery bags around him, that only Hop, his family, and the building’s superintendent had keys to the passageway, and that Hop had previously been robbed in the passageway. This evidence failed to negate a reasonable inference that the attack occurred inside the passageway and that Hop’s attacker had been able to 6 gain access to it because of the allegedly negligently maintained lock of which the defendants had notice, rather than by alternative means not attributable to the defendants’ alleged negligence. 78 AD3d at 798-799. See also, Detres v. New York City Housing Authority, 271 AD2d 309, 310 [1 st Dept. 2000] [“The existence of evidence concerning the decedent’s drinking and previous falls does not make it impossible for plaintiff to prevail on the issue of causation; it is not necessarily the case that plaintiffs own conduct is equally likely to have been the proximate cause for the accident. It is up to the jury to decide if, in fact, the cause suggested by the Housing Authority is equally, or more, plausible.”]; Caraballo v. Paris Maintenance, 2 AD3d 275 [1 st Dept. 2003]; Guzman v. Strab Constr., 228 AD2d 645 [2d Dept. 1996]; Turso v. Stein, 284 AD2d 390 [2d Dept. 2001]; Gluszak v. Raytone Plumbing, 15 AD3d 439 [2d Dept. 2005] Cucuzza v. NYC, 2 AD3d 389 [2d Dept. 2003], illustrates this principle as well. There, plaintiff stepped off a sidewalk running next to his property and into a pothole on Constant Avenue between 15 and 50 feet west of Westcott Boulevard in Staten Island. He claimed that the pothole was created between May 13 and May 20, 1997. Between November 20, 1996 and June 6, 1997, Techno Construction, Inc. worked for the City on a water main and sewer replacement and installation project in the area. Techno had secured street opening permits valid through May 15, 7 1997 to remove, among other things, the roadway surface of Constant Avenue for a distance of up to 50’ west of Westcott. NB Construction conceded that between May 5 and 16, 1997 it performed all roadway replacement and repaving work for the project, but denied that its work on Constant Avenue extended more than 30’ west of Westcott. Each of the defendants moved for summary judgment dismissing the complaint; the motions were granted on a finding that the pothole was open and obvious. The Appellate Division modified, holding that the openness of the defect went to the issue of comparative negligence, not the issue of duty. The Court also held that the summary judgment motions of NB and Techno had to be denied because their prima facie showing that they were not responsible for the defect was brought into question by the contrary evidence of the plaintiff. True, “Where the evidence is capable of an interpretation which makes it equally consistent with the absence as with the presence of a wrongful act, the meaning must be ascribed which accords with its absence”. DiGelormo v. Weil, 260 NY 192, 199- 200 [1932]. But here there is no such reasonable alternative because other than speculation from Mr. Zanfardino that the sandy residue plaintiff slipped on blew from across the street, there was no credible evidence submitted by the defendants to refute plaintiff’s prima facie case. At the very least, the 8 issue should have been submitted to the jury because the evidence proffered at trial fully supported the reasonable inference that the construction debris and dust caused by JJC’s concrete chopping work across the chicken-wire fence, was a more likely source of the sandy residue that caused Mr. Montas’s accident. Thus, it is not correct for the majority of the First Department to conclude that the sandy substance Mr. Montas slipped on was just as likely to have come from across the street, and not from the dross and dust that was created by JJC’s work. In fact, it is more likely that the sand came from JJC’s construction activities than from another source because Mr. Zanfardio, testified that around the time of Mr. Montas’s accident, JJC workers were removing or chopping the concrete roadway; they also removed a thrust block to install a new fire hydrant. The work was done as close as 20 feet from the spot where Mr. Montas was injured. [759] Mr. Zanfardino also confirmed that on the day of plaintiff’s accident, workers were grading the southeast area of Tremont Avenue, near where the accident occurred; the work included 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 9 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] Similarly, Mr. Duodo testified that JJC removed concrete slabs that were excavated, chopped and broken up; these slabs were located near the Jersey barrier and fence where plaintiff’s accident occurred. [339-340] On the other hand, no documentary evidence was submitted by either the City or JJC establishing that brick pointing work was being performed across the street at the time of the plaintiff’s accident. In affirming the trial Court’s order setting aside the plaintiff’s verdict, the First Department majority clearly rejected this testimony and preferred the speculative testimony of Mr. Zanfardino that the sandy substance blew onto the pedestrian walkway from across the street. This type of analysis had been specifically rejected by the courts that have considered this issue. It is well settled that a reviewing court may not set aside a verdict or direct a verdict solely because the court would have reached a different result. But this is exactly what the trial Court and the First Department did here. See, Clarke v. Donovan, 34 AD2d 1099 [4 th Dept. 1970]; Mann v. Hunt, 283 AD 140 [3d Dept. 1953] [A “trial judge should...not interfere [with the verdict] just because he 10 dislikes the verdict; or feels quite strongly he would have done something else; or even because he may think the verdict is unjust”]. Stated differently, a court may not interfere with the fact-finding function of a jury because it would have evaluated credibility in a different manner. McDermott v. Coffee Beanery, Ltd., 9 AD3d 195 [1 st Dept. 2004]; Rivera v. 4064 Realty Co., 17 AD3d 201, 203 [1 st Dept. 2005], lv. denied, 5 NY3d 713 [2005]. Moreover, to say that one cause is as likely as another is to admit the existence of a triable issue of fact that precludes the award of a directed verdict in favor of a defendant at trial. [c] The fact that JJC’s work was not directly next to the walkway is of no moment because it would be reasonable for a jury to conclude that the dust that was created from the concrete work did not settle into one neat pile that was subsequently swept up and removed from the site. The more reasonable inference is that the dust and debris at the site was thrown all over the worksite, including areas beyond the Jersey barrier that was separated on top by a chicken-wire fence, through which debris and dust did blow. Equally important, Mr. Duodo testified at his deposition that the whitish material seen on the photograph that Mr. Montas slipped on was “most likely sand”, but it was “very difficult to 11 tell” so he was not positive about it. [498, 537] We submit that based on this testimony, significant issues of fact were created warranting submission of the case to a jury. [d] JJC’s argument that plaintiff was unable to identify the cause of his fall, and that at best, the plaintiff provided “several competing possibilities” as to the proximate cause of his accident, warranting a directed verdict in its favor is without merit. [Brief at p. 29] The specific argument was refuted by the plaintiff who testified at trial that the construction debris that he slipped on came specifically from inside the Jersey barrier that “spilled through the fence”. [229] Plaintiff never testified that he slipped on a substance that came from a different source; plaintiff’s trial testimony reveals that three was only one cause of his accident – JJC’s depositing of sandy material in the area where he fell as a result of its activities at the construction site. Thus, defendants’ argument, as well as the cases cited, must be rejected as inapplicable. [e] In this regard, defendant’s repeated reference to the barrier that separated the walkway where Mr. Montas slipped and JJC’s worksite, as being a “six-ton concrete barrier”, is deliberately misleading because there is a chicken-wire fence 12 that sits on the top of the barrier; the instrumentality simply is not the impenetrable barrier or fortress that defendant would like this Court to believe. Indeed, the photographs admitted into evidence at trial prove that the Jersey barrier is not an impenetrable wall that would prevent sand from JJC’s site activities from accumulating in the area where plaintiff fell. [901-904] [f] Defendant also contends that the motion for a directed verdict was properly granted because Mr. Zanfardino testified that the sandy substance that caused plaintiff’s accident had to have come from the brick pointing work that was being done across the street and not from JJC’s worksite activities. The defendant’s preference for the testimony of its own witness is not the proper way to support the trial Court’s holding. It is not proper for defense counsel to argue that summary dismissal of the plaintiff’s case is proper because the testimony of defendant’s witnesses is more persuasive or credible than that of plaintiff’s; the determination involves issues of credibility which can be resolved only by a jury. Contrary to defendants’ argument, 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]. 13 This Court has repeatedly held that the “trier of fact is free to disbelieve [even] uncontroverted testimony”. Matter of Nowakowski, 2 NY2d 618, 622 [1957], quoting NY Bankers v. Duncan, 257 NY 160 [1931]. After all, “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”. Punsky v. NYC, 129 AD 558-9 [2d Dept. 1908]; Brennan v. Bauman & Sons, 107 AD2d 654 [2d Dept. 1985]. [g] Moreover, as we argued in our main brief, we believe that plaintiff may rely on circumstantial evidence to establish a prima facie case based on the facts disclosed on this record. See, Archie v. Todd Shipyards Corp., 65 AD2d 699-701 [1st Dept. 1978]. Of course, we acknowledge that pure speculation is insufficient to establish a claim or defense (Bernstein v. NYC, 69 NY2d 1020 [1987]), and, “where...there are several possible causes of injury, for one or more of which a defendant is not responsible, the plaintiff cannot recover without proving the injury was sustained wholly or in part by a cause for which defendant was responsible” (Pippo v. City of New York, 43 AD3d 303, 304-305 [1 st Dept. 2007]; McNally v. Sabban, 32 AD3d 340, 341 [1 st Dept. 2006]). 14 However, we submit that the circumstantial evidence on this record, construed in a light most favorable to the plaintiff, establishes that JJC’s excavating, chopping and breaking of the concrete near the accident site was more probably than not a proximate cause of the plaintiff’s accident. See, Berrios v. 735 Ave. of Amer., 82 AD3d 552, 553 [1 st Dept. 2011] [“Finally, even if plaintiff could be found recalcitrant for failing to use a harness, defendants’ failure to provide proper safety [equipment] was a more proximate cause of the accident”.] At the very least, assessment of the credibility of the witnesses should have been left for the jury to resolve. The trial Court should not have granted defendants’ motion for a directed verdict and the affirmance of the order by the First Department majority should be reversed. In addition, the City witness Mr. Duodo testified that JJC was responsible for cleaning up the worksite [389, 504-505]; JJC confirmed this when Mr. Zanfardino admitted that JJC was required to remove its own debris from the site. [760] Of course, a defendant’s failure to comply with its own rules, or business practices, is “some evidence” of negligence (Clarke v. NYCTA, 174 AD2d 268 [1 st Dept. 1991]). [h] Defendants have ignored our argument at pages 14-16 and of our main brief, regarding the prejudicial nature of the 15 photographs that were taken by defense counsel during the middle of trial that were erroneously admitted into evidence to support defendants’ speculative argument that the sandy substance upon which plaintiff fell must have come from across the street where brick pointing work was being done. Mr. Zanfardino should not have been allowed to testify as to his observations of the building because whatever is shown in the photographs taken at the time of trial (photographs that were never served on the plaintiff), is irrelevant as to what the building may have looked like 10 years previously. [i] Defendants deny that the trial Court made any determination as to credibility of the witnesses in directing a verdict. [JJC Brief at pp. 38-39] This simply is not true, because in directing a verdict for defendants after the jury returned a verdict in plaintiff’s favor, the trial Court impermissibly favored and preferred the testimony of Mr. Zanfardino over that of the plaintiff and his cousin. In doing so, the trial Court usurped the jury’s role by resolving contested issues of fact. To say that plaintiff’s evidence amounted to nothing more than “mere suggestion” or “speculation” is to reject the credible evidence presented by the plaintiff at trial. The fact that the majority noted that the construction experience of Mr. Montas and his cousin were limited to interior 16 construction work proves our point, because this goes to the weight of the evidence, not to its admissibility or sufficiency. [JJC Brief at p. 45] Likewise, the fact that Mr. Duodo testified that JJC was responsible for cleanup of the worksite “if the contractor is the cause” [385], simply raises an issue of credibility because it contradicted his earlier testimony that JJC was responsible for cleanup of the worksite regardless of who caused the need for same. [389, 504-505] Respondent’s contention at page 46 of the brief that JJC was only responsible for cleaning up areas “behind the barrier and the fence” [JJC Brief at p. 46] is contradicted by Mr. Zanfardino’s testimony at page 855 of the record, where he testified that it was JJC’s responsibility to clean up outside the work area if the need for cleaning was caused by JJC’s work. [855] These factual issues should have been resolved by the jury. [j] The City argues that plaintiff failed to establish that it had actual or constructive notice of a hazardous condition so as to establish a prima facie case of negligence. Generally, a plaintiff alleging that a defendant failed to maintain its premises in a reasonably safe manner must establish that defendant had actual or constructive notice of the 17 defective condition and a sufficient time to remedy it before liability can be imposed upon the defendant. Gordon v. American Museum of Natural History, 67 NY2d 836 [1986]. Constructive notice exists where the defect is visible and apparent and existed long enough to have been remedied prior to the accident. Gordon, supra; Endres v. Mingles Rest., 95 NY2d 845 [2000]. In our case, the notice requirement is satisfied because there is evidence of an ongoing and recurring dangerous condition that was routinely left unaddressed by the defendant. See, Irizarry v. 15 Mosholu Four, LLC, 24 AD3d 373 [1 st Dept. 2005]; Zisa v. City of New York, 39 AD3d 313 [1 st Dept. 2007]. When a landowner has actual knowledge of the tendency of a particular dangerous condition to reoccur, he is charged with constructive notice of each specific re-occurrence of that condition. Weisenthal v. Pickman, 153 AD2d 849, 851 [2d Dept. 1989]; see also, Zelaya v. Breger, 43 AD3d 437 [2d Dept. 2007] Roussos v. Ciccotto, 15 AD3d 641, 643 [2d Dept. 2005]. A party’s physical proximity to a defective condition can also preclude a claim of lack of notice as a matter of law. See, Perrino v. Entergy Nuclear, 48 AD3d 229 [1 st Dept. 2008]; Rosas v. 397 Bway., 19 AD3d 574 [2d Dept. 2005]; Acevedo v. Morton West Assoc., 227 AD2d 280 [1 st Dept. 1996]. In this regard, courts have specifically held that a defendant who was present at a site where an accident took place 18 can rarely claim not to have had notice of a defective condition [Park v. Caesar Chemists, 245 AD2d 425 [2d Dept. 1997]], since persons are required to be vigilant and observe what is there to be seen by the proper use of their senses. The same rule applies where, as here, a similar condition recurs in nearby areas, and it is reasonable to infer that it also recurred in the area where the accident took place [Mazerbo v. Murphy, 52 AD3d 1064 [3d Dept. 2008]]. Moreover, it is black letter law that “a negligent failure to discover a condition that should have been discovered can be no less a breach of due care than the failure to respond to actual notice”. Blake v. City of Albany, 48 NY2d 875, 877 [1979]; Farrell v. Prentice, 206 AD2d 799 [3d Dept. 1994]. The seminal case is Weigand v. United Traction Co., 221 NY 39 [1917], in which the Court of Appeals stated that a party is obligated to see “that which by the proper use of his senses should be seen.” He may not “close his eyes” to what takes place on his property to create a defense of lack of notice [Vasquez v. RVA Garage, 238 AD2d 407 [2d Dept. 1997]]. What matters is not what defendant knew but what he should have known in the circumstances. Sanchez v. State, 99 NY2d 247 [2002]; Wolf v. NYC, 39 NY2d 568 [1976]. See also, Rogers v. Dorchester Assoc., 32 NY2d 553, 559 [1973] [Defendant liable for “failure to use reasonable care to discover and correct a condition which [they] 19 ought to have found”]; see also, Tashjian v. Strong & Assoc., 225 AD2d 907-8 [3d Dept. 1996]. In addition, we submit that actual or constructive notice need not be proven here because the sandy substance was caused and created by JJC’s work. One who creates a defect in a public way is liable for resulting injuries irrespective of notice (D’Ambrosio v. NYC, 55 NY2d 454,462 [1982]; Weil v. 237 E. 57 St., 233 AD2d 449 [1 st Dept. 1996]; Granville v. NYC, 211 AD2d 195-6 [1 st Dept. 1995]; Sheehan v. Rubenstein, 164 AD2d 663-4 [2d Dept. 1989]). Plaintiff need not prove notice where it is established that the defendant affirmatively created the defective condition that resulted in the plaintiff’s accident 2 (Cook v. Rezende, 32 NY2d 596, 599 [1973]; Ohanessian v. Chase Manhattan Realty, 193 AD2d 567 [1 st Dept. 1993]); the party that created the condition is liable for any resulting injuries, or so a jury may find. In Peretrich v. NYC, 263 AD2d 410-1 [1 st Dept. 1999], the First Department held that the factual allegations in the “amended complaint” supported plaintiff’s claim and that “while... occasional use of a sidewalk for receiving deliveries does not constitute a special use...the evidence suggests that Gristedes 2 JJC correctly notes that we did not raise the issue of “cause and create” in the appeal below. [JJC Brief at p. 47] This is because the defendants never raised the defense of lack of actual or constructive notice at trial. Therefore, there was no need for plaintiff to raise this argument in the appeal before the First Department. However, we did address this issue in our reply brief submitted to the First Department at pages 13-14. 20 delivery trucks mounted the sidewalk with sufficient regularity as to constitute a special use.” In Infante v. NYC, 258 AD2d 333 [1 st Dept. 1999], the First Department affirmed a jury verdict against Getty Petroleum Corp. on the theory of special use where the parking of vehicles on a sidewalk created the defect which gave rise to plaintiff’s accident. Here, it was plaintiff’s contention at trial that the sandy construction debris was caused and created by the defendant JJC when it was excavating, chopping and breaking the concrete near the accident site. At the very least, assessment of the credibility of the witnesses should have been left for the jury to resolve. The trial Court should not have granted the defendants’ motion for a directed verdict and the order appealed from should be reversed. [k] JJC’s claim that as an independent contractor, it owned no duty of care to the plaintiff “because Mr. Montas was not a party to the contract”, is wholly without merit. In Cahn v Ward Trucking, Inc., 95 AD3d 466 [1 st Dept. 2012], the plaintiff sustained severe personal injuries when he was struck in the leg by a 30-gallon barrel of chemicals that fell off a pallet while it was being delivered into the lobby of 450 Park Avenue, New York, a building where plaintiff worked. 21 The building was undergoing renovation work and defendant Falk was retained as the HVAC subcontractor. Falk needed to install new piping, which had to be cleaned with chemicals before they were installed. Falk ordered these chemicals which were subsequently delivered to the building by another independent contractor. The evidence established that Falk was contractually responsible and had control over the receipt, delivery, unloading and all other risks of loss relating to any materials or equipment it was to furnish or , provide under the contract. Falk cross-moved for summary judgment and dismissal of the complaint and all cross-claims, primarily on the grounds that Falk, as a subcontractor, did not own the property, had no direct supervision or control over the delivery and the manner in which it was made, and therefore, owed the plaintiff no duty of care as an independent contractor. The trial Court denied Falk’s motion holding that issues of fact existed as to whether the accident “was caused by Falk failing to assist in the delivery of the barrels”. The First Department affirmed that part of the order, holding that The court properly denied Falk’s motion for summary judgment dismissing the complaint against it. Although Falk did not actually supervise the unloading and delivery of the barrels, issues of fact remain as to whether it had the authority to actually supervise that 22 activity, given the very specific duty in its contract with Dolner to oversee deliveries of materials used in the work (cf. Reilly v Newireen Assoc., 303 AD2d 214, 221 [2003], lv denied, 100 NY2d 508 [2003]). 95 AD3d at 467. Likewise, in the case at bar, it remains undisputed that JJC had a contractual obligation to clean up the worksite, including areas beyond the Jersey barrier; indeed, according to the City’s witness, Mr. Duodo, this obligation is triggered irrespective of who created the “mess”. [504] At the very least, it was a factual issue that should have been left to the jury to resolve. In Uvaydova v. Welsbach Electric Corp., 275 AD2d 776 [2d Dept. 2000], the defendant argued that it owed no duty to the plaintiff as it was an independent Contractor hired by the State of New York pursuant to a contract. The Contract required the defendant to “provide adequate protection for pedestrian traffic during all phases of Construction.” The Second Department relying on the exception in Palka v. Service Master, 83 NY2d 579, held that the reasonable expectation of pedestrians that the temporary traffic signal would be maintained is “Consonant with the expectation of the Contractor regarding its duty under the Contract.” Not uncommonly, parties outside a contract are permitted to sue for tort damages arising out of negligently performed or 23 omitted contractual duties. See, Glanzer v. Shepard, 233 NY 236 [1922]; MacPherson v. Buick Motor Co., 217 NY 382 [1916]; Fish v. Waverly Elec. Light & Power Co., 189 NYS 366 [1921]. As Judge Cardoza said in MacPherson, supra: “There is nothing anomalous in a rule which imposes upon A, who has contracted with B, a duty to C and D and others according as he knows or does not know that the subject matter of the contract matter is intended for their use.” In Genen v. Metro-North Commuter Railroad, 261 AD2d 211 [1 st Dept. 1999], the issue before the Court was whether the plaintiff could maintain a cause of action sounding only in negligence directly against the defendant snow removal contractor. The Court concluded that the defendant could be liable to the plaintiff for its affirmative acts of negligence if those acts created or increased a hazard and were a proximate cause of plaintiff’s injuries. See, Jiminez v. Cummings, 226 AD2d 112 [1 st Dept. 1996]; Camacho v. Ezras Yisrael, Inc., 221 AD2d 275 [1 st Dept. 1995]; Restatement [second] of Torts §324A[a]]; Dickerhof v. Port Authority of N.Y. & N.J., 174 AD2d 506 [1 st Dept. 1991]; Crosby v. Ogden Services Corp., 236 AD2d 220 [1 st Dept. 1977]. In the case at bar, JJC cannot escape liability by simply arguing that as an independent contractor, not in privity of contract with plaintiff, it owed the plaintiff no duty of care. 24 There exists sufficient evidence to create an issue of fact as to whether JJC was negligent in failing to properly maintain the worksite and whether such negligence was a substantial factor in causing the accident. JJC cannot dispute that under the terms of the construction agreement between it and the City, JJC was contractually obligated to make certain that the worksite was clean of construction debris. However, it was clear from the testimony at trial that JJC did not in conformity with this responsibility, insure that the construction debris was cleared from the sitae after each workday. [l] The City claims for the first time in its respondent’s brief that the case was properly dismissed as to it because the plaintiff failed to prove that “the City had received prior written notice of the condition complained of”. [City Brief at p. 14] This argument was never raised in the appeal below in the First Department, therefore, it is not preserved for consideration on this appeal. The doctrine of preservation mandates that an issue is preserved for appellate review, and thus, available as a basis for reversal or modification of an order or judgment, only if it was first raised in the nisi prius court. Sam v. Town of Rotterdam, 248 AD2d 850 [3d Dept. 1998]. Stated differently, an 25 appellate court should not, and ordinarily will not, consider different theories or new questions, if proof might have been offered to refute or overcome them had those theories or questions been presented in the court of first instance. See, Rosendale v. Galin, 266 AD2d 444 [2d Dept. 1999]; Huston v. County of Chenango, 258 AD 56, 60-61 [1937], aff’d, 278 NY 646 [1938]; Morales v. County of Nassau, 94 NY2d 218 [1999]. In Bingham v. New York City Transit Authority, 99 NY2d 355 [2003], the plaintiff tripped and fell on a defective set of stairs that led to a New York City subway station. The plaintiff sued the New York City Transit Authority and Metropolitan Transit Authority, who both moved for summary judgment arguing that the stairway in the present case was owned by another party and used for purposes in addition to subway access, leaving them with no maintenance responsibility. 99 NY2d at 358. The trial Court granted defendants’ motion for summary judgment and dismissed the complaint, concluding that defendants had no legal responsibility for the stairway. The Appellate Division affirmed, holding that defendants submitted sufficient evidence to establish that they did not own the stairway and that as a mere common user of the stairway, defendants were under no duty to maintain the stairway for the benefit of their patrons. This Court reversed. 99 NY2d at 357. 26 In addition to repeating the same arguments it raised below, defendants also attempted to interject an entirely new argument based on binding new legal precedent that it claimed was dispositive of the issues, which they couched as a legal argument that could be addressed even if raised for the first time on appeal. 99 NY2d at 359. In commenting on the preservation rule, this Court made the following observation: These are not empty technicalities. Rather, they are “at the core of the distinction between the Legislature, which may spontaneously change the law whenever it perceives a public need, and the courts which can only announce the law when necessary to resolve a particular dispute between identified parties” [Lichtman v. Grossbard, 73 N.Y.2d 792, 795, 537 N.Y.S.2d 19, 533 N.E.2d 1048 [1988]]. Moreover, in making and shaping the common law-having in mind the doctrine of stare decisis and the value of stability in the law-this Court best serves the litigants and the law by limiting its review to issues that have first been presented to and carefully considered by the trial and intermediate appellate courts. Had defendants’ new argument been presented below, plaintiff would have had the opportunity to make a factual showing or legal argument that might have undermined defendants’ position. Additionally, this Court in its evaluation of the Schlessinger rule would have benefitted from the wisdom of the trial court and Appellate Division, courts which have seen many cases like this one in the 97 years since Schlessinger. Id. In the case at bar, because the City never raised the defense of prior written notice in the appeal below or at trial, 27 this issue is unpreserved and should be rejected as a matter of law. [m] Equally important, even if preserved, we submit that there was no need to establish that the City had notice of the condition complained of. As we discussed above, the basis of liability here was predicated on JJC having caused and created the sandy debris. Therefore, plaintiff did not have to establish that the City had actual or constructive notice of the defect since the City is liable for the negligence of a contractor that it hired to perform work in a public way. [n] The City next argues that it could not be responsible for the defect caused and created by JJC, because the City “does not bear respondeat superior liability for the alleged negligence of an independent roadway contractor hired to perform work on City property unless prior written notice to the City of the condition complained of or affirmative negligence by the City has been alleged and proved”. [City Brief at p. 14] This argument is mistaken. Even if JJC was responsible for the debris, this did not relieve the City from its non-delegable duty as owner of the roadway where the accident occurred. 28 It is unquestioned law that a municipality such as the City “owes to the public the absolute duty of keeping its streets in a reasonably safe condition” (Weiss v. Fote, 7 NY2d 579, 584 [1960], quoting Annino v. City of Utica, 276 NY 192, 196 [1937] This Court, in Lopes v. Rostad, 45 NY2d 617, 623 [1978], noted: Even if the dangerous condition of the road, which caused the injury, is created by an independent contractor, the obligation imposed on the governmental body nevertheless remains fixed. In Powell v. City of New York, 250 AD2d 409 [1 st Dept. 1998], the Court held that a contract between a contractor and the City requiring the contractor to repair traffic lights did not “evince an intention that the City’s non-delegable duty to maintain its highways in a reasonably safe condition (cit.) be supplemented with a comparable duty on the part of the contractor...”. See generally, Deming v. Terminal RR of Buffalo, 169 NY 1 [1901]; Pettingill v. City of Yonkers, 116 NY 558 [1889]; Turner v. Newburgh, 109 NY 301 [1888]; Storrs v. City of Utica, 17 NY 104 [1858]; Rupp v. NYCTA, 15 AD2d 1800 [2d Dept. 1962]; Brusso v. City of Buffalo, 90 NY 679 [1882]. In Sobel v. City of New York, 9 NY2d 187 [1961], this Court stated, “Having obtained a permit from the City for excavation in a public street, Con-Tel — although it performed none of the work itself — remains subject to a non-delegable duty to 29 plaintiff until the pavement was finally restored.” Sobel was a case where plaintiff was injured after tripping on a cobblestone in the pavement crosswalk, which had been temporarily repaired following an excavation job, but before the paving stones had been cemented in final position. This Court found that there was sufficient evidence to uphold plaintiff’s recoveries against the City of New York and Con-Tel. As noted in Sciolaro v. Ash, 198 NY 77 [1910], a party “bound to perform a duty cannot relieve himself from the burden of such obligation by any contract which he may make for its performance by another person. Therefore, the fact that he may have used the utmost care in selecting an agent to perform this duty, or that he has entered into a contract with any person by which the latter undertakes to perform the duty, is no excuse for the person upon whom the obligation originally rested, in case of failure of performance. His obligation is to do the thing, not merely to employ another to do it.” Stated differently, those who contract for work done in a public way, as either owner or contractor, are under a non- delegable duty to see that the work is performed properly. See, Boylhart v. DiMarco & Reimann, 270 NY 217 [1936]; Wright v. Tudor City, 276 NY 303 [1938]. In Storrs, supra, the municipality undertook to construct a sewer, and the issue was whether it could be liable for work 30 that was negligently performed by a third-party contractor. This Court, answering that question in the affirmative, declared, “Although the work may be let out by contract, the corporation still remains charged with the care and control of the street in which the improvement is carried out…The danger arises from the very nature of the improvement, and if it can be averted only by special precautions such as placing guards or lighting the street, the corporation which has authorized the work is plainly bound to take those precautions…A municipal corporation cannot...either avoid indictment on behalf of the public or to its liability to individuals who are injured.” Based on these cases, the City is responsible as a matter of law, for the hazardous condition caused and created by JJC. Backiel v. Citibank, 299 AD2d 504, 506 [2d Dept. 2002]. [o] Nor is there any merit to the City’s argument that the trial Court properly directed a verdict in defendants’ favor based on Mr. Zanfardino’s uncontradicted testimony that the debris shown in the photographs came from the brick pointing work across the street. To the contrary, at trial, Mr. Zanfardino admitted that he had not been to the work site for over 10 years and had no idea if the exterior of the building had changed since 2000; nor did he know whether the building was 31 issued a permit in November 1999, after JJC had already left the worksite. [776-783] Mr. Zanfardino also testified that the substance that caused Mr. Montas to fall sometimes would blow inside JJC’s concrete construction barrier. [797] This testimony is contradicted by Mr. Montas’s testimony and creates issues of credibility for the jury to resolve. [p] 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 in personal injury cases 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 of the essential factual issues of negligence, foreseeability and proximate cause, in which is subsumed the assessment of the witnesses’ credibility. Even where the court believes a party has not proven a claim or defense, allowing the jury to reach a verdict promotes efficiency. The trial Court can grant judgment notwithstanding notwithstanding the verdict (CPLR 4404[a]), and if an appellate court disagrees with the grant of such a motion, it can 32 reinstate the jury’s verdict without the need for a retrial. Not following this practice further indicts the approach taken by the trial Court and First Department majority here. 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 & DE CICCO Appellate Counsel 225 Broadway, Suite 307 New York, New York 10007 212-233-8100 Brian J. Isaac, Esq. Michael H. Zhu, Esq. Of Counsel