STRAUSS v. The City of New York, Defendant.

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Supreme Court, Appellate Division, First Department, New York.

Karen STRAUSS, Plaintiff-Respondent, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant-Appellant, The City of New York, Defendant.

Decided: May 14, 2002

ANDRIAS, J.P., BUCKLEY, SULLIVAN, ELLERIN, and LERNER, JJ. Stanley E. Margolies, for Plaintiff-Respondent. Lawrence Heisler, for Defendant-Appellant.

Order, Supreme Court, Bronx County (George Friedman, J.), entered May 8, 2001, which, to the extent appealed from as limited by defendant's brief, granted plaintiff's motion to set aside the jury's finding that she was 40% comparatively negligent, and ordered a new trial on the issue of apportionment unless defendant agreed to reduce plaintiff's portion to 5%, unanimously reversed, on the facts, without costs, the motion denied and the jury's verdict reinstated.

There was evidence at trial of four or five inches of snow left on the ground from a snowfall two days before plaintiff's accident, a large and visible ice patch, and a clear section of sidewalk on which it was possible to walk around the ice patch.   Plaintiff testified that she was looking straight ahead, not at the ground, as she approached the entrance to the subway station.   The trial court exercised its discretion improvidently when it found that the jury's determination of 40% liability against plaintiff could not have been reached on any fair interpretation of the evidence (see, Nicastro v. Park, 113 A.D.2d 129, 134, 495 N.Y.S.2d 184).