TAYYABA ANWAR v. LLC APARTMENTS MANAGEMENT ASSOCIATION LLC (2026)

The following e-filed papers read herein: NYSCEF Doc Nos.:

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed 216-217, 219-230

Opposing Affidavits (Affirmations) 232, 234-237

Defendants' Memorandum of Law 218

Plaintiffs' Memorandum of Law in Opposition 233

Defendants' Reply Memorandum of Law 239

Upon the foregoing papers, in this action by plaintiffs Ghazala Tanveer (Tanveer) and Tayyaba Anwar (Anwar) (collectively, plaintiffs) for negligence against defendants Shore Haven Apartment Del LLC (Shore Haven) and Apartments Management Association LLC (Apartments Management) (collectively, defendants), defendants move, under motion sequence number eight, for an order, pursuant to CPLR 4404 (a), setting aside the jury's verdict and (1) dismissing Tanveer's action against them on the ground that Tanveer failed to properly assert or sufficiently establish her theory of constructive notice; (2) directing a new trial on the issue of liability on the ground that the jury's verdict finding them negligent based upon constructive notice only was against the weight of the evidence; or (3) granting them a new trial on the issue of liability in the interest of justice (NYSCEF Doc No. 216).

Facts and Procedural Background

On January 24, 2016, at 9:30 p.m., Tanveer and Anwar were sitting in the living room in Tanveer's apartment, located at 1535 Shore Parkway, Apartment 4G, Brooklyn, NY, when the ceiling of the living room collapsed.¹ Tanveer and Anwar were struck by large pieces of the living room ceiling. Shore Haven owned the building in which the apartment was located, and Apartments Management managed the building. Tanveer had moved into her apartment in 2010 and lived there with her four children. Tanveer's husband had previously died.

On March 9, 2016, plaintiffs filed this action against defendants (NYSCEF Doc No. 1), claiming both actual notice and constructive notice. Actual notice was claimed in that defendants had actual knowledge and/or created the complained of condition, and constructive notice was claimed in that the condition existed for a long and unreasonable period of time (id.).

On February 19, 2019, defendants moved for summary judgment, arguing that they did not have actual or constructive notice of the allegedly dangerous condition of the ceiling in Apartment 4G (NYSCEF Doc. No. 20). Defendants argued that they did not have actual notice because superintendent Michael Tekelch and porter Francis Martinez never received any complaints regarding the ceiling prior to the incident. They further argued that they had no constructive notice because no member of the building staff was inside the apartment in the approximately five months before the incident. By a June 28, 2019 order, Justice Edgar G. Walker denied defendants' motion for summary judgment with leave to renew following the deposition of Tanveer's son, Khurram Tanveer, which was to be held on or before August 14, 2019. Khurram had claimed, in an affidavit dated May 8, 2019, that he had complained to the superintendent of the building of cracks he noticed in the living room ceiling (NYSCEF Doc No. 55). Defendants did not seek to renew their motion for summary judgment.

This is the second jury trial that has taken place in this action. This matter first proceeded to trial on March 10, 2020. By order dated August 13, 2020, Justice Loren Baily Schiffman granted a motion by plaintiffs to sever the damages portion of the trial, and also denied a motion by defendants, pursuant to CPLR 4404 (a), to set aside a jury verdict, in the interest of justice, both, on the issue of liability in favor of plaintiffs and for a new trial on the issue of liability (NYSCEF Doc No. 148). Defendants appealed same to the Appellate Division, Second Department. By decision and order dated July 3, 2024, the Appellate Division, Second Department, modified Justice Bailey-Schiffman's order, concluding that, in the interest of justice, a new trial on the issue of liability was required since preclusion of defendants' expert had prejudiced defendants' ability to present a full defense (Ghazala v Shore Haven Apt. Del, LLC, 229 AD3d 447 [2d Dept 2024]). It further ruled that the court's exercise of discretion to grant plaintiffs' motion for severance of their respective damages claims, for purposes of trial, was not improvident, and that upon any new finding of liability, plaintiffs would each be entitled to a separate damages claim trial (id.). While defendants claim that plaintiffs improperly raised, before the Appellate Division, their attempt to expand their liability claim beyond the bounds of their January 2018 bill of particulars, the Appellate Division actually did not address this issue. Rather, the Appellate Division, by modifying to award a new trial on the issue of liability, affirmed the August 13, 2020 order while not reaching the parties' remaining contentions (id. at 447).

On July 23, 2025, the liability phase of the retrial of this bifurcated action began. Herbert Subin, Esq. of Subin Associates, represented both plaintiffs, and John Lyddane, Esq. of Federico, Schwartz, Merolesi & Lyddane, LLP, represented both defendants. Defendants sought to prevent the plaintiffs from asserting constructive notice based upon prior ceiling collapses that occurred throughout the apartment complex in buildings other than the subject premises (NYSCEF Doc No. 219). The court stated that as a matter of law, defendants could not be charged with constructive notice of a defect in this building based upon issues in other buildings that they own, but plaintiffs may adduce evidence regarding previous situations in the subject building (NYSCEF Doc No. 221, at 5, lines 16-20). The court then went through a booklet of testimony that plaintiffs sought to read into evidence, crossing off impermissible testimony that either dealt with other buildings or was ambiguous as to whether it concerned the subject building (id. at 5, lines 21-25).

The court stated that it was "very troubled" by parts of Mr. Subin, Esq.'s summation remarks due to misstatements he made regarding falling ceilings in the building; remarks which were unsupported by the evidence (NYSCEF Doc No. 226, at 514, lines 14-16; at 521, lines 21-23). However, the court noted that neither party was asking for a mistrial (NYSCEF Doc No. 226, at 533, line 20). On that point, the court found that a mistrial would "not be the way to go" because the parties had expended resources, including the time spent by the witnesses, (id. at 533, lines 20-23), and expressed that it was better to send this matter to the jury (id. at 533, lines 23-24). The court also rejected Mr. Lyddane, Esq.'s request that it issue a curative instruction in the nature of telling the jury that ceilings never fell in this building - - a statement that not only was unsupported by the evidence but would also have been inappropriate (id. at 534, lines 1-3). The court set forth that the best way to deal with this situation would be to reopen summations and allow the attorneys to discuss whatever they deemed fit in order to deal with all the issues created by Mr. Subin, Esq.'s closing statement (id. at 534, lines 4-9). The court cited authority that this was permitted and not unprecedented (id. at 534, lines 10-22).

The court specifically asked Mr. Lyddane, Esq. if he wished to reopen his summation, but Mr. Lyddane, Esq. declined (NYSCEF Doc No. 226, at 535, lines 1-2; at 591, lines 8-9). Mr. Lyddane, Esq. responded that there was nothing wrong with his summation and he stood on it (id. at 535, lines 3-4). The court then stated that it would, therefore, charge the jury, and did so (id. at 535, lines 8-9).

The court submitted a verdict sheet to the jury on which the jury reported its verdict (NYSCEF Doc No. 230). The jury found:

1. In response to Question one, the jury unanimously determined that the ceiling in the living room of the apartment was in a dangerous condition prior to its fall on January 24, 2016;

2. In response to Question two, five of the six jurors answered "no" to the question of whether prior to the fall of the living room ceiling in the apartment, defendants knew by Khurram Tanveer's telling Francis Martinez in December 2015 that the ceiling was in a dangerous condition long enough to correct it or to take suitable precautions.

3. In response to Question three, five of the six jurors answered "yes" that prior to the ceiling fall, even if defendants did not know of the condition, in the use of reasonable care, defendants should have known of the dangerous condition long enough to correct it or to take timely suitable precautions.

4. In response to Question four, five of the six jurors answered "yes" that after knowing about the dangerous condition of the ceiling or if they should have known about it in the use of reasonable care, defendants were negligent in not inspecting the ceiling before it fell.

5. In response to Question five, five of the six jurors answered "yes" that after knowing about the dangerous condition of the ceiling, or if defendants should have known about it in the use of reasonable care, they were negligent in not timely warning the occupants of the apartment about the dangerous condition.

6. In response to Question six, the jury unanimously responded "yes" that after knowing about the dangerous condition of the ceiling or if they should have known about it in the use of reasonable care, defendants were negligent in not timely correcting the condition.

7. In response to Question seven, the jury unanimously responded "yes" that after knowing about the dangerous condition of the ceiling or if they should have known about it in the use of reasonable care, defendants were negligent in that they violated Multiple Dwelling Law § 78 (1), which provides, in pertinent part, that "every Multiple Dwelling, including its roof or roofs, and every part thereof and the lot upon which it is situated, shall be kept in good repair."

8. In response to Question 8, the jury unanimously answered "yes" that when the ceiling fell, it struck at least one part of the body of Tanveer.

9. In response to Question nine, five out of six jurors responded "no" stating that when the ceiling fell, it did not strike at least one part of the body of Anwar.

10. In response to Question 10, the jurors unanimously answered "yes" that defendants' negligence was a substantial factor in causing the accident whereby one or two plaintiffs were struck.

After the jury's verdict was read, the attorneys argued their positions. The court denied Mr. Subin, Esq.'s motion, with respect to the determination of the jury against Anwar (NYSCEF Doc No. 226, at 593, lines 22-23), to set aside the verdict regarding Anwar because the court found that the jury's determination was not unreasonable (id. at 603, lines 23-25). The court determined that on Question two, there was a reasonable basis for the jury to find that there was no actual notice. The court ruled that it was up to the jury to decide whether to believe Khurram Tanveer or Francis Martinez and they elected to believe Francis Martinez (id. at 601, lines 4-8). The court confirmed the jury's finding as to Question two (id. at 601, lines 9-11). On September 5, 2025, defendants filed their instant post-trial motion to set aside the verdict, under motion sequence number eight (NYSCEF Doc No. 216).

Discussion

"A motion pursuant to CPLR 4404 (a) to set aside a jury verdict and for judgment as a matter of law will be granted where 'there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [persons] to the conclusion reached by the jury on the basis of the evidence presented at trial' " (Velasquez v Ruiz, 203 AD3d 786, 788 [2d Dept 2022], quoting Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]).

Mr. Lyddane, Esq. argues that plaintiffs waived the issue of constructive notice because Justice Walker's June 28, 2019 order, which denied defendants' motion for summary judgment with leave to renew, failed to mention the issue of constructive notice. The court rejects Mr. Lyddane, Esq.'s argument. The question of actual notice as well as constructive notice and liability were left undecided by Justice Walker's June 28, 2019 summary judgment order (which was rendered six years before the jury verdict). The summary judgment order did not remove any issues from the case, and was never appealed. Further, nowhere within the order was it stated that Tanveer waived the issue of constructive notice. The parties had further opportunity to litigate the issue of constructive notice and could have raised this issue before the jury (see Bonczar v American Multi-Cinema, Inc., 38 NY3d 1023, 1026 [2022], rearg denied 38 NY3d 1170 [2022]). Indeed, the court observed that there was enough evidence presented for the jury to determine the issue of constructive notice (NYSCEF Doc No. 226, at 520, lines 20-21).

The court noted that the testimony established there were cracks in ceilings in the building (NYSCEF Doc No. 225, at 381, lines 7-10). The court further stated that, as it relates to this building, the testimony of cracks in the ceilings, plus the fact that the staff or employees used nails and plaster, when coupled with knowledge of how the Trumps built the building, could lead a jury to find constructive notice had been established (id. at 381, lines 7-16, lines 21-25; at 382, lines 1-2). Thus, contrary to Mr. Lyddane, Esq.'s argument, it can be found that constructive notice was sufficiently established.

The jury's verdict was not contrary to the weight of the evidence. " 'A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence' " (Dowdy v Brooklyn Hosp. Ctr., 248 AD3d 1193, 1195 [2d Dept 2026], quoting Tafolla v Aldrich Mgt. Co., LLC, 220 AD3d 690, 691 [2d Dept 2023]; see also Cruz-Rivera v National Grid Energy Mgt., LLC, 190 AD3d 687, 688 [2d Dept 2021]). Here, the jury's verdict was supported by a fair interpretation of the evidence (see Schollmeier v Metropolitan Tr. Auth., 243 AD3d 605, 608 [2d Dept 2025]; Buckham v 322 Equity, LLC, 229 AD3d 669, 674 [2d Dept 2024]).

Mr. Lyddane, Esq. further contends that Mr. Subin, Esq.'s improper statements during summation prejudiced defendants. He asserts that Mr. Subin, Esq. made comments and statements during his summation that were inappropriate and, therefore, entitled him to a new trial. However, Mr. Lyddane, Esq. failed to raise any objections to Mr. Subin, Esq.'s summation remarks nor did he seek to reopen summations. In fact, Mr. Lyddane, Esq., after being asked by the court if he wished to reopen summations, specifically stated that he was not seeking this (NYSCEF Doc No. 226, at 535, lines 1-2). The court afforded Mr. Lyddane, Esq. the opportunity to give his perspective on the evidence, but he chose not to do so.

Since the court "offered defense counsel the opportunity to reopen summations," this "alleviat[ed] any possible prejudice to defendant[s]" (People v Lugo, 87 AD3d 1403, 1404 [4th Dept 2011], lv denied 18 NY3d 860 [2011] [internal quotation marks omitted]); see People v Nunes, 168 AD3d 1187, 1193 [3d Dept 2019], lv denied 33 NY3d 979 [2019]). Thus, the fact that Mr. Lyddane, Esq. declined to take advantage of the court's offer on this point resolves this issue in Tanveer's favor (NYSCEF Doc No. 226, at 535, lines 1-4).

Moreover, Mr. Lyddane, Esq. stated that he was not seeking a mistrial (NYSCEF Doc No. 226, at 533, line 20). Mr. Lyddane, Esq. expressed his decline of a mistrial at the time that he had the opportunity to do so, before the jury rendered its verdict. His attempt, therefore, to do so after the verdict had been rendered was inappropriate (id. at 500, lines 12-18; at 587, lines 19-22; see Grabowski v City Ctr. Dev. Co. of Buffalo, 272 AD2d 868, 869 [4th Dept 2000]; Mathews v Coca-Cola Bottling of NY, 188 AD2d 590, 591 [2d Dept 1992]; Reilly v Wright, 55 AD2d 544, 545 [1st Dept 1976]). Mr. Lyddane, Esq. could not be heard on his attempt to request a mistrial after he had already declined same and the jury rendered its verdict (NYSCEF Doc No. 226, at 589, lines 11-20; at 590, lines 4-5; see Schechtman v Lappin, 161 AD2d 118, 121 [1st Dept 1990]; Bagailuk v Weiss, 110 AD2d 284, 287 [3d Dept 1985]). Defendants were foreclosed, at that belated point, from requesting a mistrial (see Kleiber v Fichtel, 172 AD3d 1048, 1052 [2d Dept 2019], lv dismissed 34 NY3d 962 [2019]; Wilson v City of New York, 65 AD3d 906, 908 [1st Dept 2009]; Lucian v Schwartz, 55 AD3d 687, 689 [2d Dept 2008], lv denied 12 NY3d 703 [2009]; Bennett v Wolf, 40 AD3d 274, 275 [1st Dept 2007], lv denied 9 NY3d 818 [2008]; Lind v City of New York, 270 AD2d 315, 317 [2d Dept 2000]).

Defendants are, therefore, not entitled to a new trial on the issue of liability. There is no basis to set aside the jury's verdict and, as such, it is sustained.

Conclusion

Accordingly, defendants' motion, under motion sequence number eight, for an order, pursuant to CPLR 4404 (a), setting aside the jury's verdict is denied in its entirety.

Any issue raised and not addressed in this decision and order is denied.

This constitutes the decision and order of the court.

ENTER

HON. AARON D. MASLOW

Justice of the Supreme Court of the State of New York

FOOTNOTES

1.   Anwar is Tanveer's sister who lived in a different apartment on the same floor, apartment 4C, and was visiting Tanveer at the time of the incident.

Aaron D. Maslow, J.