SEAMAN v. CITY OF NEW YORK

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

Robert SEAMAN, Plaintiff-Appellant, v. CITY OF NEW YORK, Defendant-Respondent.

Decided: May 09, 2002

WILLIAMS, P.J., SAXE, BUCKLEY, ELLERIN, and RUBIN, JJ. Abraham J. Katz, for Plaintiff-Appellant. Ellen Ravitch, for Defendant-Respondent.

Judgment, Supreme Court, Bronx County (Anne Targum, J.), entered September 12, 2000, which dismissed the complaint upon defendant's motion for a directed verdict at the close of plaintiff's case, unanimously reversed, on the law, without costs, the complaint reinstated and the matter remanded for a new trial.

The trial court erred, in this slip and fall matter, in directing a verdict in favor of defendant at the close of plaintiff's case.   When plaintiff's evidence is accorded its proper treatment, that is, accepted as true and given every favorable inference, it provides a sufficient basis for the jury to rationally find in his favor (see, Parvi v. City of Kingston, 41 N.Y.2d 553, 554, 394 N.Y.S.2d 161, 362 N.E.2d 960;  Candelier v. City of New York, 129 A.D.2d 145, 147, 517 N.Y.S.2d 486).   The meteorological data and testimony submitted, along with plaintiff's testimony that he fell on a sheet of ice two inches thick that covered the entire city block, was sufficient evidence from which the jury could have determined that plaintiff's fall was caused by the 3 inches of ice remaining from a 3.4 inch snowfall five days prior, rather than ice resulting from a 1.2 inch rainfall on the day his fall occurred (see, Candelier v. City of New York, supra, at 149, 517 N.Y.S.2d 486;  see also, Tubens v. New York City Housing Auth., 248 A.D.2d 291, 292, 670 N.Y.S.2d 468 [summary judgment denied where evidence similar to that at bar was found sufficient to allow a jury to infer that plaintiff's fall, which occurred on the same date as that in the case at bar, was caused by pre-existing ice, not light precipitation which fell on that date] ).