WEBER v. 303 (2005)

Order, Supreme Court, New York County (Marilyn Shafer, J.), entered on or about June 28, 2004, which, in an action for personal injuries sustained in a trip and fall allegedly caused by a raised metal cover in front of defendant-respondent's premises, denied plaintiff's motion to set aside the verdict as against the weight of the evidence, unanimously affirmed, without costs.

The jury's finding that defendant was negligent in not correcting a dangerous condition on a portion of the sidewalk put to its special use is not inconsistent with its finding that such negligence was not a substantial factor in causing plaintiff's trip and fall.   Given trial testimony by plaintiff and her main witness that was far from unequivocal and at times even contradictory on the issues of the nature and location of the sidewalk defect over which plaintiff tripped, the jury could well have found that plaintiff failed to meet her burden of proving that the cause of her fall was the negligently maintained raised metal cover in front of defendant's premises (see Nicastro v. Park, 113 A.D.2d 129, 133-134, 495 N.Y.S.2d 184 [1985] ).