LEZAMA v. JUDLAU CONTRACTING INC (2022)

Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered on or about June 19, 2019, which granted defendant's motion pursuant to CPLR 4404(a) to set aside the verdict and direct judgment for defendant, unanimously reversed, on the law, without costs, and the motion denied.

The jury's conclusion, based on plaintiff's testimony, that defendant was negligent in creating the defective condition that caused plaintiff to trip and fall was not utterly irrational (see Cohen v. Hallmark Cards, Inc., 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145 [1978]).  While plaintiff's testimony was at times confusing and inarticulate, his account was not incredible, illogical, manifestly untrue, or physically impossible (see Phillips v. Katzman, 90 A.D.3d 436, 933 N.Y.S.2d 859 [1st Dept. 2011]).  Plaintiff testified that defendant, fulfilling a long-term construction contract, constantly created a great deal of debris that damaged the toll plaza where plaintiff worked and damaged cars passing through the plaza.  Plaintiff testified that he complained about the damage and saw defendant's workers cause the damage.  There is no dispute that plaintiff's injuries were caused by the defect.  The jury could have concluded, based on plaintiff's account, that, while defendant was not contracted to work on the toll plaza itself, defendant nevertheless caused the defect by generating debris from the work it was doing nearby.