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FILED: RICHMOND COUNTY CLERK 09/29/2021 05:39 PM INDEX NO. 100835/2015
NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 09/29/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
------------------------- ------ ---------------------X
SARA HARDEN,
Plaintiff, Index # 100835/15
-against- AFFIRMATION IN
OPPOSITION
CYPRESS CREST II CONDO, and
CYPRESS CREST III CONDOMINIUM,
Defendants.
--------------------------------------------------- ----------X
Stephen B. Kahn, Esq., an attorney at law, affirms under the penalty of perjury as
follows:
1. I am a partner in the firm of Elefterakis, Elefterakis & Panek, attorneys for the Plaintiff,
Sara Harden, and am fully familiar with the facts and circumstances herein.
PRELIMINARY STATEMENT
2. This affirmation is submitted in opposition to Defendant, CYPRESS CREST II
CONDO's (hereinafter, "II"), motion ("the motion"), made pursuant to CPLR § 4106
(4404/4406), seeking to set aside the verdict taken on September 2, 2021, which found the
Defendants 100 % liable (II75% and III25%) for the Plaintiff's accident of January 19, 2015, on
the alleged grounds that the jury did not find Plaintiff comparatively negligent, that the
apportionment of liability between the defendants was against the weight of the evidence and,
finally, upon alleged juror misconduct, which has been made out of whole cloth.
3. On September 2, 2021, the jurors found the Defendants, Cypress II and Cypress Crest III
III"
(hereinafter, "Cypress or "III"), 100 % liable for the Plaintiff's accident, apportioning the
liability 75 % as against Cypress II and 25 % as against Cypress III.Both Defêñdants made the
same motions to set aside following the jury verdict in open Court, and they were
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summarily denied by the Court.
4. Jury selection for the damages portion of the trial is scheduled for October 18, 2021.
5. The motion must be denied, as is more fully explored below, because (i) the record
plainly shows that the jury arrived at its verdict by virtue of a fair and reasonable interpretation
Defendants'
of the evidence; (ii) contrary to contention, the fact that Defendants, II and III,were
joint owners of the subject walkway where Plaintiff fell does not inherently preclude differing
percentages of fault being assigned to them; and (iii)the wholly hearsay-based argument that
there was juror misconduct is not only inappropriate for this Court to consider as it should not
delve into the jury's deliberative process, but also because any alleged conduct described in the
underlying moving papers falls woefully short of rising to the level of prejudicing a party's
substantial right.
ARGUMENT
POINT I
THE MOTION IS DEFECTIVE ON ITS FACE DUE TO MOVANT'S FAILURE TO
INCLUDE A FULL TRIAL TRANSCRIPT.
6. At the outset, itmust be noted that the motion is defective on its face as the Defendant
does not annex the full trial transcript, and ittherefore must be denied. Gorbea v. DeCohen, 118
(1St (2nd
A.D.3d 548 Dept 2014); Gerhardt v. New York City Transit Authority, 8 A.D.3d 427
Dep't 2004).
7. Furthermore, the Defendant cannot cure the in itsmotion in itsreply. Jackson-
deficiency
(2nd
Cutler v. Long, 2 A.D.3d 590 Dept 2003); Adler v. Suffolk County Water Authority, 306
(2nd
A.D.2d 229 Dept 2003).
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POINT H
DEFENDANT FAILS TO SHOW THAT THE JURY'S VERDICT WAS NOT REACHED
VIA A VALID LINE OF REASONING AND A FAIR INTERPRETATION OF THE
EVIDENCE IN THE RECORD.
A. The testimony in the record supports a conclusion that Ms. Harden was not
negligent.
8. Next, Defendant, II,in itsNotice of Motion, dated September 13, 2021, makes the motion
pursuant to CPLR § 4106, which concerns alternate jurors. Plaintiff will assume for purposes of
this opposition, itwas intended to be made pursuant to CPLR §§ 4404 and/or 4406.
9. A motion to set aside a jury verdict will only be granted where there is no valid line of
reasoning and permissible inferences which could possibly lead rational persons to the
conclusions reached by the jury on the basis of the evidence presented at trial.Nahar v. Cocci,
(2nd
112 A.D.3d 592 Dept 2013).
10. Further, a jury verdict should not be set aside as contrary to the weight of the evidence
unless the jury could have not reached the verdict by any fair interpretation of the evidence.
(2nd
Fekry v. New York City Transit Authority, 75 A.D.3d 616 Dept 2010).
11. The proponent of the motion to set aside a jury verdict as not supported by legally
sufficient evidence must demonstrate that there is no valid line of reasoning and permissible
inferences which would lead rational persons to the conclusions reached by the jury. Garcia, Jr.
(2"d
v. New York City Transit Authority, 84 A.D.3d 1021 Dept 2011).
12. The trialCourt must afford the party opposing the motion every inference which may
properly be drawn from the facts presented, and the facts must be considered in a light most
favorable to the nonmovant. When a jury's verdict can be reconciled with a reasonable view of
the evidence, the prevailing party is entitled to the presumption that the jury adopted that view.
Issues of credibility are for the jury, which had the opportunity to observe the witnesses and
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evidence, and itscredibility determination is entitled to great deference. Khaydarov v. AK1
(2nd
Group, Inc., 173 A.D.3d 721 Dept 2019).
13. Here, the Defendant, Cypress II, bears the burden of proof on the following alleged issues
brought up by the Defendant:
a. alleged comparative negligence of the Plaintiff;
b. the apportionment of liability between the Defendants; and
c. the alleged juror misconduct which is the Defendant's last-ditch attempt to disturb the
findings of this jury.
14. Cypress II,does not move to set aside the jury's finding that itwas negligent, and that its
negligence was a substantial factor in causing the Plaintiff's accident. They have finally
conceded their negligence after 6 ½ years of denying it, as is clearly evidenced in Defendant's
moving affirmation, wherein itis acknowledged that Plaintiff had to traverse "an icy and
condition."
dangerous See Defendant's affirmation in support at para. 20, inter alia.
15. There is no evidence in the record that the Plaintiff was in any way, shape, or form
negligent, and the jury unanimously agreed. The evidence is clear that, as she leftthe front gate
of her home and walked onto the walkway, she looked down to the ground as she carefully
walked. Plaintiff did nothing wrong and was acting as a reasonably prudent person should under
the peculiar circumstances of her accident, and the jury unanimously agreed. Plaintiff was caused
Defendants'
to slip and fall by reason of the negligence, which they finally concede, by leaving
the walkway in a dangerous and defective condition, without any draiñage, for at least 8 years,
and by failing to treat and remove the ice, which was deposited by an ice storm the day before
the accident. Defendants undisputedly abdicated their duty to keep their premises in a reasonably
safe condition and plaintiff was forced to traverse the unsafe area and even using her best efforts,
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could not safely do so. This is the simple reality that was appreciated by the jury and acted on
accordingly in this case.
16. The jury's finding that Plaintiff was not in any way negligent, is supported by the
evidence, must be respected, and not set aside. Moreover, Plaintiff's reason for walking on the
school,"
walkway, that her "daughter needed to get to while compelling and a perfectly rational
Defendants'
basis for leaving her home, is wholly irrelevant to the consideration of negligence.
"A"
See Defendant's Exhibit at Page(s)("P.") 172, Line(s)("L.") 14-21. The simple fact is that
Defendant, as a premises owner, had a duty, which was theirs alone to bear, to maintain their
premises in a reasonably safe condition, a duty they clearly breached. Peralta v. Henriquez, 100
N.Y.2d 139 (2003); Kellman v. 45 Tiemann Assocs., 87 N.Y.2d 871 (1995); Basso v. Miller, 40
N.Y.2d 233 (1976).
17. While Defeñdañt erroneously argues that Plaintiff was clearly contributorily negligent in
the happening of her accident, they fail to show that the jury could not have reached the
conclusion that she was non-negligent based on any valid line of reasoning and interpretation of
the evidence. Messina v Staten Is. Univ. Hosp., 121 A.D.3d 867, 867-68 (2d Dept 2014). After
all, "the testis not whether the jury erred in weighing the evidence presented, but whether any
verdict."
viable evidence exists to support the Kozlowski v City of Amsterdam, 111 A.D.2d 476,
(3rd
477 Dept 1985).
18. Here, the record supports an interpretation of the evidence that would lead a rational jury
to the conclusion that the Plaintiff, who exited her condominium unit via her front door, which
led onto the walkway where her accident ultimately occurred, had no alternative path to leave
her home and bring her daughtcr to schaGI in the morning on the day of the accident. See
"A"
Defendant's Exhibit at P. 106, L. 6-11, P. 108, L. 10-11, 18-21, P. 158, L. 24-25, P. 159, L.
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1, P. 172, L. 17-21. Moreover, the record supports a conclusion that Plaintiff exercised as much
care as she could while the where the accident happened. Id. at P. L. 6-
traversing walkway 111,
15, P. 112, L. 13-20. In fact, Ms. Harden testified that, by choosing to walk along the path she
did, she was what she perceived to be the safer of her two options. Id. at P. L. 23-
choosing 111,
24, P. 163, L. 23-25, P. 164, L. 1-15. In fact, she was asked if she "took the lesser of the two
evils,"
to which she responded that's what she was doing. Id. at P. 164, L. 24-25, P. 165, L. 1-5.
19. Given the above testimony, itsimply cannot credibly be argued that a reasonable jury
could not have concluded that Ms. Harden was not negligent under the circumstances involved in
this accident. Thus, the motion to set aside the verdict on thisbasis must be denied.
B. The record supports the reasonablêñêss of the jury's apportionmêñt of fault
ame=g the Defendants.
20. The jury's finding that the apportionment of liability between the Cypress IIand III, is
fully supported by the evidence. Units from both II and III, face the walkway which isjointly
owned by II and III,and their respective members use itto walk to the pool and parking areas.
21. The Defendant wants the Court to believe that, just because they are co-owners of the
walkway, their respective share of responsibility to Plaintiff must be the same, i.e.:50/50. This is
simply not true.
22. The duty to maintain a property in a safe condition, and one's respective share of
responsibility are different concepts, and don't necessarily mean they must be even. Each case is
judged on its own merits. As in an auto case, each driver has the duty to drive in a nonnegligent
manner, and we often see, and fully accept, liability splits of 50/50, 1/3 to 2/3, 25/75, etc.
23. Likewise, and by way of analogy, owners and tenants or other possessors of a premises
are often found to be jointly responsible for the maintenance of a property, especially in the
context of transient conditions. Yet, cases in which a premises owner and the occupant/possessor
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of a premises are both found to be responsible for such a condition, to varying degrees, are
legion. In fact, this Court made this exact point during a colloquy in this matter regarding the
issue of - "The Court: Hold on. You can control and maintain premises
ownership theoretically
over which you don't own; for example, if you have a lease of a premises you have a
ownership." "1,"
responsibility for the maintenance of it.Flows from See Plaintiff's Exhibit
annexed hereto, at P. 3, L. 12-16, 20-25, P. 4, L. 1-2.
24. Here, the jury's finding that Defendant, II, bears 75 % responsibility is fully supported by
the evidence. Plaintiff lives in II and was a resident of II.Id. at P. 10, L. 14-16, P. 40, L. 19-20.
Plaintiff pays her common charges to II.Id. at P. 19, L. 7-8. Part of her common charges, as
conceded by Anthony Dileo, President of II's HOA¹, is for snow and ice removal. Id. at P. 11, L.
16-20, P. 12, L. 13-15, P. 19, L. 12-17. Cypress II also hired the contractor(s) who performed the
necessary snow removal at the subject walkway, and were generally charged with making sure it
was safe for homeowners of II.Id. at P. 20, L. 6-8, P. 31, L. 14-21, P. 33, L. 9-15.
25. Cypress II owes Plaintiff the greater obligation to provide her with safe egress from her
unit and around the property, and the jury's finding that II is 75 % responsible, is supported by
the evidence. The jury's finding must be respected, and not set aside, as Mr. Dileo's testimony
clearly supports the jury's finding that Defendant, II,bears a greater portion of the liability in this
matter, and also supports Plaintiff's argument to this effect herein, and Plaintiff is entitled to
presented"
"every inference which may properly be drawn from the facts when the facts are
nonmovant."
"considered in a light most favorable to the Hand v. Field, 15 A.D.3d 542, 543 (2d
Dept 2005) (quoting Szczerbiak v. Pilat, 90 N.Y.2d 553, 556 (1997)).
***
1 P. 7,L. P.
Id. at 3-5, 8, L.5-7.
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POINT III
DEFENDANT'S HEARSAY-BASED ALLEGATION OF JUROR MISCONDUCT
SHOULD NOT BE COUNTENANCED AS IT SEEKS TO INVADE THE JURY'S
DELIBERATIVE PROCESS.
Defendants'
26. last ditch desperate attempt to impugn this jury's verdict is a claim of juror
misconduct, premised upon an alleged hearsay statement of a juror relayed in an attorney's
affirmation, which, even if given credence, does not amount to juror misconduct.
27. It has long been the law that, with narrow exceptions, jury verdicts may not be impeached
by probes into the jury's deliberative process. Inquiry may only be made into improper influence.
The hearsay statement of a juror, relayed in an affirmation of an attorney, can not be used to
(2nd
impeach the verdict. Khaydarov v. AK1 Group. Inc., 173 A.D.3d 721 Dep't 2019). After all,
trial"
"it is not every irregularity in the conduct of jurors that requires a new (internal citations
omitted). Gabrielle G. v. White Plains City School Dist., 106 A.D.3d 776 (2d Dept 2013);
LaChappelle v. McLoughlin, 68 A.D.3d 824 (2d Dept 2009).
28. Mere speculation, such as the juror's alleged hearsay at issue here, which is not supported
by any evidentiary showing in the record, is patently insufficient for purposes of seeking to
impeach a jury's verdict inasmuch as even affidavits from jurors may not be considered for
process."
purposes of exploring the jury's "deliberative Best v. Swan Group, 81 AD.3.d 1344
(4th Dept 2011); Hoffman v. Domenico Bus Serv., 183 A.D.2d 807, 808 (2d Dept 1992) ("the
use of such affidavits for the purpose of exploring the deliberative processes of the jury and
impeaching itsverdict is patently improper"). Neither are post-trial depositions of jurors
permissible. See Kaufman v. Eli Lily, 65 N.Y.2d 449 (1985).
29. In the absence of good cause, jurors should be protected against post-trial efforts to
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thoughts' verdict."
'browse among their in an effort to invalidate their Gamell v Mount Sinai
Hosp., 40 A.D.2d 1010 (2nd Dept 1972), citing McDonald v Pless, 238 U.S. 264, 267-268
(1915) ("Let itonce be established that verdicts solemnly made and publicly returned into court
can be attacked and set aside on the testimony of those who took part in their publication and all
verdicts could be, and many would be, followed by an inquiry in the hope of discovering
something which might invalidate the finding. Jurors would be harassed and beset by the
defeated party in an effort to secure from them evidence of facts which might establish
misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the
result would be to make what was intended to be a private deliberation, the constant subject of
public investigation; to the destruction of all frankness and freedom of discussion and
conference").
30. Thus, while Defendant improperly attempts to introduce a hearsay statement which
purports to characterize in blanket fashion the manner in which jury's deliberative process was
conducted, the same is wholly inappropriate for judicial review, especially in the manner
presented in the motion.
31. It must also be pointed out that the only two cases cited by Defendant in their moving
papers2
regarding the alleged juror misconduct in those cases were criminal cases where the
allegation of juror misconduct was predicated upon a purely criminal statute, CPL § 330.30(2),
which provides that, after the rendition of a verdict of guilty but before the sentence is imposed,
the court may, upon the defendant's motion, set aside the verdict if "during the trialthere
occurred, out of the presence of the court, improper conduct by a juror, or improper conduct by
another person in relation to a juror, which may have affected a substantial right of the defendant
2 v.
People Romano, 8 A.D.3d 503 (2d Dep't 2004) and People v. Brown, 21 A.D.3d 1035 (2d Dep't 2005).
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verdict"
and which was not known to the defendant prior to the rendition of the (internal cites
omitted). People v. Jameson, 95 A.D.3d 1236 (2nd Dept 2012).
32. Naturally, the matter at bar is not a criminal case and, thus, the above statute is
inapplicable. Moreover, in a civil context, "it has long been the law that, with narrow exceptions,
process"
jury verdicts may not be impeached by probes into the jury's deliberative and "a new
party"
trial will only be required if themisconduct prejudiced a substantial right of a but, once
again, "the hearsay statement of a juror, relayed in an affirmation of an attorney, could not be
verdict"
used to impeach the (internal cites omitted). Khaydarov, supra at 722-723.
33. Here, in addition to the fact that Defendant's argument is wholly unsupported by any
non-hearsay evidence, nor even a scintilla of evidence in the record, there is not even an
allegation of improper influence from an outside source. To wit, the assertion of counsel as to a
jurors alleged isolated hearsay statement is offered without any context whatsoever.
34. Counsel further complains that itonly took the jury 40 minutes to reach their verdict and
they never requested the evidence be brought into the jury room.
35. Counsel conveniently forgets that the jurors viewed the evidence, projected onto the big
TV screen in the courtroom, every day of the trial over a period of 6 trial days. They reviewed
the evidence every day of the trial. Counsel gave closing using the evidence and the issues in this
case were narrow and succinct, as it concerned only the issue of liability following a slip and fall
on a dangerous condition.
36. It isclear from the foregoing that this jury's verdict is fully supported by a fair
interpretation of the evidence and must not be disturbed. Counsel's attempts to impugn the jury's
verdict simply should not be countenanced and the Court should not permit moving defendant's
characterizations and speculations to undermine the jury's sacrosanct deliberation process.
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WHEREFORE, itis respectfully requested that the instant motion be denied in its
entirety, and for just other and further relief as the Court deems just and proper.
Dated: New York, New York
September 29, 2021
Stephen B. hn, Esq.
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CERT1FICATION OF SECTION 202.8-b WORD COUNT COMPLIANCE
This Affirmation in Support of Order to Show Cause complies with the word count
limitation of Section 202.8-b of the Uniform Civil Rules for the Supreme Court because itcontains
3215 words, excluding the caption and signature block.
Dated: New York, New York
September 29, 2021
Stephen B. K n, Esq.
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Preview
FILED: RICHMOND COUNTY CLERK 09/29/2021 05:39 PM INDEX NO. 100835/2015 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 09/29/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND ------------------------- ------ ---------------------X SARA HARDEN, Plaintiff, Index # 100835/15 -against- AFFIRMATION IN OPPOSITION CYPRESS CREST II CONDO, and CYPRESS CREST III CONDOMINIUM, Defendants. --------------------------------------------------- ----------X Stephen B. Kahn, Esq., an attorney at law, affirms under the penalty of perjury as follows: 1. I am a partner in the firm of Elefterakis, Elefterakis & Panek, attorneys for the Plaintiff, Sara Harden, and am fully familiar with the facts and circumstances herein. PRELIMINARY STATEMENT 2. This affirmation is submitted in opposition to Defendant, CYPRESS CREST II CONDO's (hereinafter, "II"), motion ("the motion"), made pursuant to CPLR § 4106 (4404/4406), seeking to set aside the verdict taken on September 2, 2021, which found the Defendants 100 % liable (II75% and III25%) for the Plaintiff's accident of January 19, 2015, on the alleged grounds that the jury did not find Plaintiff comparatively negligent, that the apportionment of liability between the defendants was against the weight of the evidence and, finally, upon alleged juror misconduct, which has been made out of whole cloth. 3. On September 2, 2021, the jurors found the Defendants, Cypress II and Cypress Crest III III" (hereinafter, "Cypress or "III"), 100 % liable for the Plaintiff's accident, apportioning the liability 75 % as against Cypress II and 25 % as against Cypress III.Both Defêñdants made the same motions to set aside following the jury verdict in open Court, and they were 1 1 of 12 FILED: RICHMOND COUNTY CLERK 09/29/2021 05:39 PM INDEX NO. 100835/2015 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 09/29/2021 summarily denied by the Court. 4. Jury selection for the damages portion of the trial is scheduled for October 18, 2021. 5. The motion must be denied, as is more fully explored below, because (i) the record plainly shows that the jury arrived at its verdict by virtue of a fair and reasonable interpretation Defendants' of the evidence; (ii) contrary to contention, the fact that Defendants, II and III,were joint owners of the subject walkway where Plaintiff fell does not inherently preclude differing percentages of fault being assigned to them; and (iii)the wholly hearsay-based argument that there was juror misconduct is not only inappropriate for this Court to consider as it should not delve into the jury's deliberative process, but also because any alleged conduct described in the underlying moving papers falls woefully short of rising to the level of prejudicing a party's substantial right. ARGUMENT POINT I THE MOTION IS DEFECTIVE ON ITS FACE DUE TO MOVANT'S FAILURE TO INCLUDE A FULL TRIAL TRANSCRIPT. 6. At the outset, itmust be noted that the motion is defective on its face as the Defendant does not annex the full trial transcript, and ittherefore must be denied. Gorbea v. DeCohen, 118 (1St (2nd A.D.3d 548 Dept 2014); Gerhardt v. New York City Transit Authority, 8 A.D.3d 427 Dep't 2004). 7. Furthermore, the Defendant cannot cure the in itsmotion in itsreply. Jackson- deficiency (2nd Cutler v. Long, 2 A.D.3d 590 Dept 2003); Adler v. Suffolk County Water Authority, 306 (2nd A.D.2d 229 Dept 2003). *** 2 2 of 12 FILED: RICHMOND COUNTY CLERK 09/29/2021 05:39 PM INDEX NO. 100835/2015 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 09/29/2021 POINT H DEFENDANT FAILS TO SHOW THAT THE JURY'S VERDICT WAS NOT REACHED VIA A VALID LINE OF REASONING AND A FAIR INTERPRETATION OF THE EVIDENCE IN THE RECORD. A. The testimony in the record supports a conclusion that Ms. Harden was not negligent. 8. Next, Defendant, II,in itsNotice of Motion, dated September 13, 2021, makes the motion pursuant to CPLR § 4106, which concerns alternate jurors. Plaintiff will assume for purposes of this opposition, itwas intended to be made pursuant to CPLR §§ 4404 and/or 4406. 9. A motion to set aside a jury verdict will only be granted where there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusions reached by the jury on the basis of the evidence presented at trial.Nahar v. Cocci, (2nd 112 A.D.3d 592 Dept 2013). 10. Further, a jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could have not reached the verdict by any fair interpretation of the evidence. (2nd Fekry v. New York City Transit Authority, 75 A.D.3d 616 Dept 2010). 11. The proponent of the motion to set aside a jury verdict as not supported by legally sufficient evidence must demonstrate that there is no valid line of reasoning and permissible inferences which would lead rational persons to the conclusions reached by the jury. Garcia, Jr. (2"d v. New York City Transit Authority, 84 A.D.3d 1021 Dept 2011). 12. The trialCourt must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant. When a jury's verdict can be reconciled with a reasonable view of the evidence, the prevailing party is entitled to the presumption that the jury adopted that view. Issues of credibility are for the jury, which had the opportunity to observe the witnesses and 3 3 of 12 FILED: RICHMOND COUNTY CLERK 09/29/2021 05:39 PM INDEX NO. 100835/2015 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 09/29/2021 evidence, and itscredibility determination is entitled to great deference. Khaydarov v. AK1 (2nd Group, Inc., 173 A.D.3d 721 Dept 2019). 13. Here, the Defendant, Cypress II, bears the burden of proof on the following alleged issues brought up by the Defendant: a. alleged comparative negligence of the Plaintiff; b. the apportionment of liability between the Defendants; and c. the alleged juror misconduct which is the Defendant's last-ditch attempt to disturb the findings of this jury. 14. Cypress II,does not move to set aside the jury's finding that itwas negligent, and that its negligence was a substantial factor in causing the Plaintiff's accident. They have finally conceded their negligence after 6 ½ years of denying it, as is clearly evidenced in Defendant's moving affirmation, wherein itis acknowledged that Plaintiff had to traverse "an icy and condition." dangerous See Defendant's affirmation in support at para. 20, inter alia. 15. There is no evidence in the record that the Plaintiff was in any way, shape, or form negligent, and the jury unanimously agreed. The evidence is clear that, as she leftthe front gate of her home and walked onto the walkway, she looked down to the ground as she carefully walked. Plaintiff did nothing wrong and was acting as a reasonably prudent person should under the peculiar circumstances of her accident, and the jury unanimously agreed. Plaintiff was caused Defendants' to slip and fall by reason of the negligence, which they finally concede, by leaving the walkway in a dangerous and defective condition, without any draiñage, for at least 8 years, and by failing to treat and remove the ice, which was deposited by an ice storm the day before the accident. Defendants undisputedly abdicated their duty to keep their premises in a reasonably safe condition and plaintiff was forced to traverse the unsafe area and even using her best efforts, 4 4 of 12 FILED: RICHMOND COUNTY CLERK 09/29/2021 05:39 PM INDEX NO. 100835/2015 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 09/29/2021 could not safely do so. This is the simple reality that was appreciated by the jury and acted on accordingly in this case. 16. The jury's finding that Plaintiff was not in any way negligent, is supported by the evidence, must be respected, and not set aside. Moreover, Plaintiff's reason for walking on the school," walkway, that her "daughter needed to get to while compelling and a perfectly rational Defendants' basis for leaving her home, is wholly irrelevant to the consideration of negligence. "A" See Defendant's Exhibit at Page(s)("P.") 172, Line(s)("L.") 14-21. The simple fact is that Defendant, as a premises owner, had a duty, which was theirs alone to bear, to maintain their premises in a reasonably safe condition, a duty they clearly breached. Peralta v. Henriquez, 100 N.Y.2d 139 (2003); Kellman v. 45 Tiemann Assocs., 87 N.Y.2d 871 (1995); Basso v. Miller, 40 N.Y.2d 233 (1976). 17. While Defeñdañt erroneously argues that Plaintiff was clearly contributorily negligent in the happening of her accident, they fail to show that the jury could not have reached the conclusion that she was non-negligent based on any valid line of reasoning and interpretation of the evidence. Messina v Staten Is. Univ. Hosp., 121 A.D.3d 867, 867-68 (2d Dept 2014). After all, "the testis not whether the jury erred in weighing the evidence presented, but whether any verdict." viable evidence exists to support the Kozlowski v City of Amsterdam, 111 A.D.2d 476, (3rd 477 Dept 1985). 18. Here, the record supports an interpretation of the evidence that would lead a rational jury to the conclusion that the Plaintiff, who exited her condominium unit via her front door, which led onto the walkway where her accident ultimately occurred, had no alternative path to leave her home and bring her daughtcr to schaGI in the morning on the day of the accident. See "A" Defendant's Exhibit at P. 106, L. 6-11, P. 108, L. 10-11, 18-21, P. 158, L. 24-25, P. 159, L. 5 5 of 12 FILED: RICHMOND COUNTY CLERK 09/29/2021 05:39 PM INDEX NO. 100835/2015 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 09/29/2021 1, P. 172, L. 17-21. Moreover, the record supports a conclusion that Plaintiff exercised as much care as she could while the where the accident happened. Id. at P. L. 6- traversing walkway 111, 15, P. 112, L. 13-20. In fact, Ms. Harden testified that, by choosing to walk along the path she did, she was what she perceived to be the safer of her two options. Id. at P. L. 23- choosing 111, 24, P. 163, L. 23-25, P. 164, L. 1-15. In fact, she was asked if she "took the lesser of the two evils," to which she responded that's what she was doing. Id. at P. 164, L. 24-25, P. 165, L. 1-5. 19. Given the above testimony, itsimply cannot credibly be argued that a reasonable jury could not have concluded that Ms. Harden was not negligent under the circumstances involved in this accident. Thus, the motion to set aside the verdict on thisbasis must be denied. B. The record supports the reasonablêñêss of the jury's apportionmêñt of fault ame=g the Defendants. 20. The jury's finding that the apportionment of liability between the Cypress IIand III, is fully supported by the evidence. Units from both II and III, face the walkway which isjointly owned by II and III,and their respective members use itto walk to the pool and parking areas. 21. The Defendant wants the Court to believe that, just because they are co-owners of the walkway, their respective share of responsibility to Plaintiff must be the same, i.e.:50/50. This is simply not true. 22. The duty to maintain a property in a safe condition, and one's respective share of responsibility are different concepts, and don't necessarily mean they must be even. Each case is judged on its own merits. As in an auto case, each driver has the duty to drive in a nonnegligent manner, and we often see, and fully accept, liability splits of 50/50, 1/3 to 2/3, 25/75, etc. 23. Likewise, and by way of analogy, owners and tenants or other possessors of a premises are often found to be jointly responsible for the maintenance of a property, especially in the context of transient conditions. Yet, cases in which a premises owner and the occupant/possessor 6 6 of 12 FILED: RICHMOND COUNTY CLERK 09/29/2021 05:39 PM INDEX NO. 100835/2015 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 09/29/2021 of a premises are both found to be responsible for such a condition, to varying degrees, are legion. In fact, this Court made this exact point during a colloquy in this matter regarding the issue of - "The Court: Hold on. You can control and maintain premises ownership theoretically over which you don't own; for example, if you have a lease of a premises you have a ownership." "1," responsibility for the maintenance of it.Flows from See Plaintiff's Exhibit annexed hereto, at P. 3, L. 12-16, 20-25, P. 4, L. 1-2. 24. Here, the jury's finding that Defendant, II, bears 75 % responsibility is fully supported by the evidence. Plaintiff lives in II and was a resident of II.Id. at P. 10, L. 14-16, P. 40, L. 19-20. Plaintiff pays her common charges to II.Id. at P. 19, L. 7-8. Part of her common charges, as conceded by Anthony Dileo, President of II's HOA¹, is for snow and ice removal. Id. at P. 11, L. 16-20, P. 12, L. 13-15, P. 19, L. 12-17. Cypress II also hired the contractor(s) who performed the necessary snow removal at the subject walkway, and were generally charged with making sure it was safe for homeowners of II.Id. at P. 20, L. 6-8, P. 31, L. 14-21, P. 33, L. 9-15. 25. Cypress II owes Plaintiff the greater obligation to provide her with safe egress from her unit and around the property, and the jury's finding that II is 75 % responsible, is supported by the evidence. The jury's finding must be respected, and not set aside, as Mr. Dileo's testimony clearly supports the jury's finding that Defendant, II,bears a greater portion of the liability in this matter, and also supports Plaintiff's argument to this effect herein, and Plaintiff is entitled to presented" "every inference which may properly be drawn from the facts when the facts are nonmovant." "considered in a light most favorable to the Hand v. Field, 15 A.D.3d 542, 543 (2d Dept 2005) (quoting Szczerbiak v. Pilat, 90 N.Y.2d 553, 556 (1997)). *** 1 P. 7,L. P. Id. at 3-5, 8, L.5-7. 7 7 of 12 FILED: RICHMOND COUNTY CLERK 09/29/2021 05:39 PM INDEX NO. 100835/2015 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 09/29/2021 POINT III DEFENDANT'S HEARSAY-BASED ALLEGATION OF JUROR MISCONDUCT SHOULD NOT BE COUNTENANCED AS IT SEEKS TO INVADE THE JURY'S DELIBERATIVE PROCESS. Defendants' 26. last ditch desperate attempt to impugn this jury's verdict is a claim of juror misconduct, premised upon an alleged hearsay statement of a juror relayed in an attorney's affirmation, which, even if given credence, does not amount to juror misconduct. 27. It has long been the law that, with narrow exceptions, jury verdicts may not be impeached by probes into the jury's deliberative process. Inquiry may only be made into improper influence. The hearsay statement of a juror, relayed in an affirmation of an attorney, can not be used to (2nd impeach the verdict. Khaydarov v. AK1 Group. Inc., 173 A.D.3d 721 Dep't 2019). After all, trial" "it is not every irregularity in the conduct of jurors that requires a new (internal citations omitted). Gabrielle G. v. White Plains City School Dist., 106 A.D.3d 776 (2d Dept 2013); LaChappelle v. McLoughlin, 68 A.D.3d 824 (2d Dept 2009). 28. Mere speculation, such as the juror's alleged hearsay at issue here, which is not supported by any evidentiary showing in the record, is patently insufficient for purposes of seeking to impeach a jury's verdict inasmuch as even affidavits from jurors may not be considered for process." purposes of exploring the jury's "deliberative Best v. Swan Group, 81 AD.3.d 1344 (4th Dept 2011); Hoffman v. Domenico Bus Serv., 183 A.D.2d 807, 808 (2d Dept 1992) ("the use of such affidavits for the purpose of exploring the deliberative processes of the jury and impeaching itsverdict is patently improper"). Neither are post-trial depositions of jurors permissible. See Kaufman v. Eli Lily, 65 N.Y.2d 449 (1985). 29. In the absence of good cause, jurors should be protected against post-trial efforts to 8 8 of 12 FILED: RICHMOND COUNTY CLERK 09/29/2021 05:39 PM INDEX NO. 100835/2015 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 09/29/2021 thoughts' verdict." 'browse among their in an effort to invalidate their Gamell v Mount Sinai Hosp., 40 A.D.2d 1010 (2nd Dept 1972), citing McDonald v Pless, 238 U.S. 264, 267-268 (1915) ("Let itonce be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation; to the destruction of all frankness and freedom of discussion and conference"). 30. Thus, while Defendant improperly attempts to introduce a hearsay statement which purports to characterize in blanket fashion the manner in which jury's deliberative process was conducted, the same is wholly inappropriate for judicial review, especially in the manner presented in the motion. 31. It must also be pointed out that the only two cases cited by Defendant in their moving papers2 regarding the alleged juror misconduct in those cases were criminal cases where the allegation of juror misconduct was predicated upon a purely criminal statute, CPL § 330.30(2), which provides that, after the rendition of a verdict of guilty but before the sentence is imposed, the court may, upon the defendant's motion, set aside the verdict if "during the trialthere occurred, out of the presence of the court, improper conduct by a juror, or improper conduct by another person in relation to a juror, which may have affected a substantial right of the defendant 2 v. People Romano, 8 A.D.3d 503 (2d Dep't 2004) and People v. Brown, 21 A.D.3d 1035 (2d Dep't 2005). 9 9 of 12 FILED: RICHMOND COUNTY CLERK 09/29/2021 05:39 PM INDEX NO. 100835/2015 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 09/29/2021 verdict" and which was not known to the defendant prior to the rendition of the (internal cites omitted). People v. Jameson, 95 A.D.3d 1236 (2nd Dept 2012). 32. Naturally, the matter at bar is not a criminal case and, thus, the above statute is inapplicable. Moreover, in a civil context, "it has long been the law that, with narrow exceptions, process" jury verdicts may not be impeached by probes into the jury's deliberative and "a new party" trial will only be required if themisconduct prejudiced a substantial right of a but, once again, "the hearsay statement of a juror, relayed in an affirmation of an attorney, could not be verdict" used to impeach the (internal cites omitted). Khaydarov, supra at 722-723. 33. Here, in addition to the fact that Defendant's argument is wholly unsupported by any non-hearsay evidence, nor even a scintilla of evidence in the record, there is not even an allegation of improper influence from an outside source. To wit, the assertion of counsel as to a jurors alleged isolated hearsay statement is offered without any context whatsoever. 34. Counsel further complains that itonly took the jury 40 minutes to reach their verdict and they never requested the evidence be brought into the jury room. 35. Counsel conveniently forgets that the jurors viewed the evidence, projected onto the big TV screen in the courtroom, every day of the trial over a period of 6 trial days. They reviewed the evidence every day of the trial. Counsel gave closing using the evidence and the issues in this case were narrow and succinct, as it concerned only the issue of liability following a slip and fall on a dangerous condition. 36. It isclear from the foregoing that this jury's verdict is fully supported by a fair interpretation of the evidence and must not be disturbed. Counsel's attempts to impugn the jury's verdict simply should not be countenanced and the Court should not permit moving defendant's characterizations and speculations to undermine the jury's sacrosanct deliberation process. 10 10 of 12 FILED: RICHMOND COUNTY CLERK 09/29/2021 05:39 PM INDEX NO. 100835/2015 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 09/29/2021 WHEREFORE, itis respectfully requested that the instant motion be denied in its entirety, and for just other and further relief as the Court deems just and proper. Dated: New York, New York September 29, 2021 Stephen B. hn, Esq. 11 11 of 12 FILED: RICHMOND COUNTY CLERK 09/29/2021 05:39 PM INDEX NO. 100835/2015 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 09/29/2021 CERT1FICATION OF SECTION 202.8-b WORD COUNT COMPLIANCE This Affirmation in Support of Order to Show Cause complies with the word count limitation of Section 202.8-b of the Uniform Civil Rules for the Supreme Court because itcontains 3215 words, excluding the caption and signature block. Dated: New York, New York September 29, 2021 Stephen B. K n, Esq. 12 of 12