Andreas Nikolakopoulos, et al., respondents, v. MTA (2014)

Submitted—January 28, 2014

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendant appeals from a judgment of the Supreme Court, Queens County (Agate, J.), dated April 24, 2012, which, upon a jury verdict in favor of the plaintiffs, and upon the denial of its motion pursuant to CPLR 4404(a) to set aside the verdict and for judgment as a matter of law, is in favor of the plaintiffs and against it in the principal sum of $250,000.

ORDERED that the judgement is affirmed, with costs.

The injured plaintiff, Andreas Nikolakopoulous, slipped and fell while descending a stairway at the Broadway subway station of the N line in Queens.   Although it was raining at the time of the accident, the stairway was covered by a canopy.   At trial, the plaintiffs presented expert testimony indicating that the wet condition of the stairway was caused by holes in a wind wall that allowed water to leak and accumulate on the stairway.   At the conclusion of the trial, the jury found the New York City Transit Authority (hereinafter NYCTA) 100% liable for the happening of the accident, and awarded damages.

NYCTA was not entitled to judgment as a matter of law because the plaintiffs offered evidence of a specific ongoing and recurring dangerous condition, consisting of holes in the wind wall, which allowed water to leak and accumulate on the stairway whenever it rained (see id.;   see also Tucker v. New York City Tr. Auth., 42 AD3d 316, 317–318;  Villaurel v. City of New York, 59 AD3d 709;  cf.  Solazzo v. New York City Tr. Auth., 6 NY3d 734).   Moreover, there is no merit to NYCTA's contention that the testimony of the plaintiffs' expert was based upon sheer speculation (see Tate v Freeport Union School Dist., 7 AD3d 695;  cf.  Groninger v. Village of Mamaroneck, 17 NY3d 125;  Rui–Jiao Liu v. City of White Plains, 95 AD3d 1192;  Picerno v. New York City Tr. Auth., 4 AD3d 349).   Contrary to NYCTA's contention, the storm-in-progress rule has no applicability to the facts of this case (see Fielding v. Rachlin Mgt. Corp., 309 A.D.2d 894, 894).   Accordingly, the Supreme Court properly denied NYCTA's motion pursuant to CPLR 4404(a) to set aside the verdict and for judgment as a matter of law.

ENG, P.J., BALKIN, SGROI and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court