BIDA v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY (2019)

Judgment, Supreme Court, New York County (James E. d'Auguste, J.), entered June 22, 2017, insofar as appealed from as limited by the briefs, dismissing the complaint as against defendant Port Authority of New York and New Jersey (Port Authority) upon a jury verdict in its favor, unanimously affirmed, without costs.

The jury's determination that the Port Authority's negligence was not a substantial factor in causing plaintiff's injuries was not against the weight of the credible evidence (see Dwight v. New York City Tr. Auth., 30 A.D.3d 270, 270–271, 817 N.Y.S.2d 266 [1st Dept. 2006], lv denied 7 N.Y.3d 711, 823 N.Y.S.2d 770, 857 N.E.2d 65 [2006]).  Given plaintiff's equivocal testimony as to the cause of her fall, it was entirely within the jury's province to conclude that she failed to meet her burden of proving that the cause of her fall was the Port Authority's failure to adequately maintain the stairwell on which she fell (see Weber v. City of New York, 24 A.D.3d 130, 808 N.Y.S.2d 155 [1st Dept. 2005]).

Plaintiff's argument regarding the order of the interrogatories concerning the parties' liability on the verdict sheet is unpreserved for appellate review, since she did not object or take exception thereto at trial (see Ganaj v. New York City Health & Hosps. Corp., 130 A.D.3d 536, 12 N.Y.S.3d 886 [1st Dept. 2015];; see also Grace v. New York City Tr. Auth., 123 A.D.3d 401, 998 N.Y.S.2d 36 [1st Dept. 2014]).  In any event, the court ordered the interrogatories in the manner identified in PJI 2:36, which is consistent with our jurisprudence on the order in which negligence and comparative negligence are to be considered (Rodriguez v. City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898, 101 N.E.3d 366 [2018]).

The court did not improvidently exercise its discretion in precluding plaintiff's expert engineer from testifying.  Plaintiff's CPLR 3101(d) exchange indicated that the witness would testify that the Port Authority violated the New York City Building Code, with which it is not required to comply (see Love v. Port Auth. of N.Y. & N.J., 168 A.D.2d 222, 562 N.Y.S.2d 110 [1st Dept. 1990]).  Even were we to find that nonmandatory standards otherwise accepted in the relevant community at the relevant time provide some evidence of negligence, plaintiff's expert failed to show that the standards he relied on were accepted at the relevant time (see Hotaling v. City of New York, 55 A.D.3d 396, 866 N.Y.S.2d 117 [1st Dept. 2008], affd 12 N.Y.3d 862, 881 N.Y.S.2d 655, 909 N.E.2d 577 [2009]).