BELL v. CITY OF NEW YORK (1998)

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Schneier, J.), dated October 18, 1997, which, upon a jury verdict, is in favor of the defendant and against her, dismissing the complaint.

ORDERED that the judgment is reversed, on the law, and a new trial is granted, with costs to abide the event.

We agree with the plaintiff that the trial court's submission of an intoxication charge (see, PJI 2:20) to the jury in this case was erroneous, since the evidence clearly was inadequate to support such an instruction (see, e.g., Vetere v. Garcia, 211 A.D.2d 631, 621 N.Y.S.2d 362;  Sanchez v. Manhattan & Bronx Surface Tr. Operating Auth., 203 A.D.2d 128, 610 N.Y.S.2d 507;  Arroyo v. City of New York, 171 A.D.2d 541, 567 N.Y.S.2d 257;  see generally, Marigliano v. City of New York, 196 A.D.2d 533, 601 N.Y.S.2d 161;  Myron v. Millar El. Indus., 182 A.D.2d 558, 582 N.Y.S.2d 201).   Moreover, in view of the close nature of the case and the City's strong reliance throughout the trial on the theory that the plaintiff was intoxicated at the time she fell, and that her condition caused or contributed to the accident, the error cannot be deemed harmless, notwithstanding the responses to the interrogatories propounded on the verdict sheet returned by the jury (see, e.g., Mercedes v. Amusements of Am., 160 A.D.2d 630, 559 N.Y.S.2d 252).  Accordingly, there must be a new trial.

MEMORANDUM BY THE COURT.