ABREU v. CITY OF NEW YORK (2005)

In an action to recover damages for personal injuries, the defendant appeals from a judgment of the Supreme Court, Queens County (Grays, J.), entered July 18, 2003, which, upon the denial of its motion to dismiss the complaint, made at the close of the plaintiff's case, upon a jury verdict finding it 80% at fault and the plaintiff 20% at fault in the happening of the accident, and upon a separate jury verdict awarding damages in the total sum of $120,000, is in favor of the plaintiff and against it in the principal sum of $96,000.

ORDERED that the judgment is affirmed, with costs.

On January 18, 1996, the plaintiff was injured when he fell into a catch basin located on a Queens street.   At trial, the plaintiff presented testimony from an engineer that the iron grating of the catch basin caved in because, when it was installed, the soil surrounding and supporting it was not correctly compacted.

The evidence was legally sufficient to support the jury verdict (see Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145;  Kiley v. Almar, Inc., 1 A.D.3d 570, 767 N.Y.S.2d 651).   The plaintiff presented sufficient evidence for a rational juror to conclude that the defendant's affirmative act of negligence in the installation and construction of the catch basin created the dangerous condition which proximately caused the accident, thereby obviating the need for prior written notice to the defendant of the dangerous condition (see Amabile v. City of Buffalo, 93 N.Y.2d 471, 473-475, 693 N.Y.S.2d 77, 715 N.E.2d 104;  Combs v. Incorporated Vil. of Freeport, 139 A.D.2d 688, 689, 527 N.Y.S.2d 443;  cf. Corey v. Town of Huntington, 9 A.D.3d 345, 346, 780 N.Y.S.2d 156;  Arias v. City of New York, 284 A.D.2d 354, 355, 725 N.Y.S.2d 394;  Toohey v. Town of Brunswick, 191 A.D.2d 858, 595 N.Y.S.2d 132).   In this regard, we reject the defendant's argument that the plaintiff's expert's testimony was speculative.   Such testimony was fairly inferable from the evidence (see Tate v. Freeport Union School Dist., 7 A.D.3d 695, 696, 777 N.Y.S.2d 188;  Kozma v. Biberfeld, 264 A.D.2d 817, 818, 695 N.Y.S.2d 601;  Toohey v. Town of Brunswick, supra ).

The defendant's remaining contentions are without merit.