CINTRON v. NEW YORK CITY TRANSIT AUTHORITY (2005)

Judgment, Supreme Court, Bronx County (Kenneth L. Thompson, J.), entered January 21, 2004, which set aside a jury verdict finding defendant 70% culpable and the infant plaintiff 30% culpable and dismissed the complaint, unanimously reversed, on the law and the facts, without costs, the jury verdict as to liability reinstated and the matter remanded for a new trial on the issues of apportionment unless plaintiff, within 30 days of service of a copy of this order, stipulates to an apportionment of 50%-50%.

 The jury's verdict on liability cannot be said to be irrational as a matter of law (see Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145 [1978] ), in light of evidence that the operator could have seen plaintiff in time to stop the train.   Nor can it be said to be against the weight of the evidence (Lewis v. Progressive Agency, 6 A.D.3d 293, 774 N.Y.S.2d 707 [2004];  Jamal v. New York City Health & Hosp. Corp., 280 A.D.2d 421, 422, 721 N.Y.S.2d 337 [2001] ).   However, we believe that the jury's apportionment of liability is against the weight of the evidence and that our suggested reapportionment of liability more reasonably reflects the reality of the circumstances here (see Roseboro v. New York City Tr. Auth., 10 A.D.3d 524, 782 N.Y.S.2d 23 [2004];  Alfonso Mena v. New York City Tr. Auth., 238 A.D.2d 159, 656 N.Y.S.2d 206 [1997];  Robinson v. New York City Tr. Auth., 105 A.D.2d 614, 481 N.Y.S.2d 85 [1984] ).

The Decision and Order of this Court entered herein on June 9, 2005 is hereby recalled and vacated (see M-3018 and M-3381 decided simultaneously herewith).