CORTES v. The City of New York, Defendant–Respondent. (2025)

Order, Supreme Court, Bronx County (Bianka Perez, J.), entered on or about January 16, 2025, which denied plaintiff's motion pursuant to CPLR 4404 to set aside the jury's verdict and either direct a verdict in her favor on the issue of liability or order a new trial, unanimously affirmed, without costs.

Supreme Court properly held that the jury's verdict should not be set aside.  Plaintiff has not met the heavy burden of demonstrating that the evidence so preponderated in favor of plaintiff that the jury could not have reached its verdict upon any fair interpretation of the evidence (see Grassi v. Ulrich, 87 N.Y.2d 954, 956, 641 N.Y.S.2d 588, 664 N.E.2d 499 [1996];  Pavlou v. City of New York, 21 A.D.3d 74, 76, 797 N.Y.S.2d 478 [1st Dept. 2005], affd 8 N.Y.3d 961, 836 N.Y.S.2d 506, 868 N.E.2d 186 [2007]).  Here, it was possible for the jury to find that defendant the City of New York had notice of the defect and was negligent in maintaining the sidewalk, but that its negligence was not a substantial factor in causing plaintiff's injuries.

Moreover, plaintiff failed to preserve her challenge to the jury charge because she did not object to the charge at any point before the jury deliberated (CPLR 4110–b;  Stryker Sec. Group Inc. v. Elite Investigations Ltd., 170 A.D.3d 553, 554, 97 N.Y.S.3d 63 [1st Dept. 2019]).