Preview
FILED: KINGS COUNTY CLERK 05/11/2023 04:36 PM INDEX NO. 515902/2016
NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 05/11/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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RICHARD DOUGHERTY, Index No.: 515902/2016
Plaintiff, AFFIRMATION IN
SUPPORT OF MOTION
- against -
FOR REARGUMENT
AND, UPON
359 LEWIS AVENUE ASSOCIATES, LLC REARGUMENT, DENIAL
OF PLAINTIFF’S CPLR
Defendant. 4404 MOTION
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EMILIO GRILLO, ESQ., an attorney duly admitted to practice law in the Courts of the
State of New York, hereby affirms the truth of the following under penalties of perjury:
1. Your Affirmant is an attorney at law and member of GOLDBERG SEGALLA,
LLP, counsel for defendant 359 LEWIS AVENUE ASSOCIATES, LLC (“Defendant”), and, as
such, is fully familiar with all of the facts and circumstances as herein set forth.
2. This Affirmation is respectfully submitted in support of Defendant’s motion
seeking an Order: (1) pursuant to CPLR 2221(d), granting reargument of the Decision and Order
of this Court dated March 24, 2023,1 and, upon reargument, denying Plaintiff’s motion to set aside
the verdict and order a new trial pursuant to CPLR 4404; and, (2) for such other and further relief
as the Court deems just, necessary, and proper.
3. Reargument of this Court’s decision is appropriate for two reasons. First, because
it was apparently based on the mistaken belief that the jury was required to adopt defense counsel’s
rhetorical remark, made on summation, that plaintiff fell through the stairway opening. Separately,
the Court’s factual finding on this issue reveals that it failed to interpret all facts and make all
1
Defendant filed and served a copy of this Court’s Decision and Order with Notice of Entry on April 11, 2023
(NYSCEF Doc. No. 125).
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inferences entirely in defendants’ favor, as required. Viewed in a light most favorable to
Defendant, and honoring the jury’s role as arbiter of credibility and factual disputes, the record
unambiguously supports the jury’s verdict determining that Defendant was not a proximate cause
of the accident.
PROCEDURAL HISTORY
4. This matter concerns personal injuries that Plaintiff allegedly sustained on March
18, 2016, “when he [allegedly] fell through the stairway opening on the rear fourth floor fire escape
of defendant’s building.” (NYSCEF Doc No. 97 [Plaintiff’s Affirmation in Support] at ¶3).
Plaintiff’s “sole claim of negligence against the defendant was that they allowed a dangerous
condition to exist on their premises by failing to have a guardrail around the stairway opening on
the fire escape.” (Id. at ¶35).
5. The matter proceeded to trial on April 18, 2022 (NYSDEF Doc. No. 95 [Amended
Extract]). During defense counsel’s closing argument, which is not evidence, he stated that the
parties agreed that plaintiff fell through the staircase opening (NYSCEF Doc. No. 110 [April 22,
2022 minutes] at 384:9-16).2 Moments later, he explained that plaintiff had, contemporaneously,
admitted to an EMT worker that he did not fall into the unguarded side of the opening, but forward,
down the stairs (Id. at 399:1-8). On April 22, 2022, the jury returned a unanimous verdict finding
the Defendant negligent but that its negligence was not a substantial factor in causing Plaintiff’s
accident (NYSDEF Doc. No. 95).
2
The specific words were general and, on their face, do not constitute a concession that plaintiff fell through the
unguarded side: “I want you to know that we, Mr. Donadio [Plaintiff’s counsel] and by extension, Mr. Rabus [Defense
counsel], we agree on a lot of things in this case. There is no question that there was an accident on March 18th of
2016. There is no question that Mr. Dougherty fell through an open hatch way on my client's fire escape. There is no
question on that. We agree on that.”
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A. Plaintiff’s CPLR 4404 motion
6. On May 20, 2022, Plaintiff moved to set aside the verdict and for a new trial
pursuant to CPLR 4404(a) (NYSCEF Doc. Nos. 96-103). Plaintiff argued that “[because] the
issues of negligence and proximate cause were inextricably interwoven, it was impossible for a
reasonable view of the evidence to determine that defendant’s negligence was not a proximate
cause of the plaintiff’s incident” (NYSCEF Doc No. 97 [Affirmation in Support] at ¶8).
7. In his motion, Plaintiff averred that defendant “did not dispute, nor was there any
evidence that contradicted Mr. Dougherty’s testimony that he fell into the stairway opening after
assessing the window” (Id. at ¶37), and that “it is impossible for ‘reasonable people’ to conclude
that a lack of a guardrail around the opening was not a proximate cause of the accident, as these
issues were ‘inextricably interwoven’” (Id. at ¶37).
B. Defendant’s Opposition to Plaintiff’s CPLR 4404 motion
8. Defendant opposed Plaintiff’s motion, arguing that: (1) plaintiff’s failure to annex
the entire trial transcript to his motion rendered it procedurally defective pursuant to CPLR
2214(c); (2) that Plaintiff waived his inconsistent verdict claim as he failed to raise it until after
the jury was discharged; and, (3) that there was reasonable view of the evidence under which it is
logically possible to reconcile a finding of negligence but no proximate cause (NYSCEF Doc No.
108 [Affirmation in Opposition] at ¶3).3
9. Defendant’s opposition began by discussing the great deference given to a jury
verdict in favor of a defendant, which stands in a different footing than a plaintiff’s verdict, based
on where the burden of proof lies (NYSCEF Doc No. 114 [Memorandum of Law in Opposition]
3
Defendant is only moving to reargue the Court’s decision relating to its third argument, that it was logically possible
to reconcile the jury’s findings on negligence and proximate cause. Thus, in the interest of judicial economy, this
memorandum will not set forth defendant’s arguments, plaintiff’s reply, or this Court’s decision relating to arguments
(1) or (2).
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at 6-7). Defendant noted that “a jury can return a defense verdict simply because it concludes that
plaintiff failed to prove one element of a claim. It need not find that defendant proved some
alternate scenario.” Id. at 6.
10. Defendant argued that “it is logically possible to reconcile the jury’s finding that
Defendant was negligent for failing to install a guardrail around the fourth-floor fire escape
staircase opening, but that its negligence was not a proximate cause of Plaintiff’s accident. To do
so, the jurors were entitled to accept either (a) that that the only substantial factor causing the
accident was Plaintiff’s admitted failure to look where he was going, or (b) that Plaintiff simply
failed to prove that he was injured due to the absence of the guardrail.” Id. at 7. Defendant argued
that, alternatively, the verdict “can also be reconciled and explained by the jurors disbelieving
Plaintiff and rejecting his testimony as to how he was injured on the fire escape.” Id. at 8.
11. Defendant noted that it was plaintiff’s burden to “come forward with competent
evidence to demonstrate a causal relationship between the accident and the alleged defect”, and
that, at trial, “Plaintiff was the only witness to his accident and the only witness who offered
evidence that it was a result of his stepping into the unguarded stairway opening” (Id. at 8-9).
Defendant argued that plaintiff’s testimony was at times “incredible, confusing, and contrary to
other reliable evidence,” and that he was repeatedly impeached during his examination. Id. Based
on plaintiff’s specious testimony, the jury “could have concluded that Plaintiff testified falsely as
to whether he took the photograph of the fire escape from the roof, or whether he looked down as
he descended the ladder, or whether he looked down once he got on the ladder, or whether he fell
backwards, or whether he told the EMT that he fell face forward.” Id. at 13-14.
12. Defendant noted that the jury was properly instructed with a falsus in uno charge
entitling them to reject plaintiff’s testimony in its entirety and conclude that he simply lied about
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how the accident occurred. (Id. at 8-9). Because the jury could have reached this conclusion,
“defendant is entitled to this inference [that it did so], which suffices, on its own, to defeat
Plaintiff’s motion.” Id. at 9-10. In other words, defendant was entitled to the inference that the jury
concluded “Plaintiff had failed to carry his burden to establish how he was injured.” Id. at 14.
13. Defendant argued that, separately, “the jurors could have reasonably concluded that
Plaintiff was injured in a traditional, forward-facing fall while descending the stairs to the third
floor of the fire escape – or indeed, simply slipped on the third floor itself.” Id. at 14. To do so,
the jurors could have relied on photographs of the fire escape, plaintiff’s testimony about the scope
of his inspection of the fire escape, and Plaintiff’s statement to EMT Johnson that he “fell face
forward down one flight of stairs” (Id. at 14-15). As this view of the evidence would reconcile the
finding of negligence but no proximate cause, defendant was “entitled to the presumption that the
jury adopted this view.” Id. at 15.
14. Crucially, defendant had made this exact argument at trial. Immediately after
pointing out that plaintiff had admitted to EMT Johnson that he fell forward, counsel highlighted
that plaintiff changed his story at his deposition and stuck with the changed story at trial (NYSCEF
Doc. No. 110 [April 22, 2022 minutes] at 399:16-400:4). Counsel immediately connected this
contradiction with the falsus in uno charge (Id. at 400:5-16):
His Honor, aside from the many legal charges he is going to give
you, one charge he is going to give you and it's really important. It's
a Latin term called falsus in uno. It stands for the proposition that if
you find that someone has testified falsely about a material fact in
evidence, you are free to disregard all of their testimony. This entire
case is built on the testimony of Richard Dougherty. What he has
testified to is completely opposite of what he told the EMS worker
who treated him on the day of the accident. So I submit to you,
Ladies and Gentlemen, his testimony is not worthy of your belief.
His testimony is not worthy of your acceptance.
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15. Counsel then related an anecdote of his daughter hitting her head and hurting herself
when she was ten, comparing it to plaintiff’s case and explaining that in such a case, no one else
is to blame (Id. at 401:14-402:3). He concluded by expressly arguing that even if defendant had
been negligent, its negligence was not a cause of the accident, which was solely caused by
plaintiff’s carelessness (Id. at 403:21-404:5).
C. Plaintiff’s Reply to Defendant’s Opposition
16. In reply, Plaintiff reiterated that he was entitled to a new trial because “defendant
never argued that Mr. Dougherty would have fallen even if a guardrail had been present.”
(NYSCEF Doc. No. 117 [Affirmation in Reply] at ¶4) and that “defendant conceded during the
trial that Mr. Dougherty fell through the hole, as opposed to slipping on the steps.” (Id. at ¶5) – in
other words, cherry-picking the language appearing at NYSCEF No. 110 at 384, and disregarding
the extensive argument that followed. This entire argument was, of course, improper, as it had not
been made in Plaintiff’s moving papers and indeed, NYSCEF No. 110 had not been annexed
thereto. Plaintiff argued that there was insufficient evidence to support a finding that Plaintiff fell
down the stairs, and that such a conclusion could only be reached by impermissible speculation
(Id. at ¶9). Plaintiff further averred that, in light of defense counsel’s alleged concession, and in
view of the other evidence presented at trial, “it is impossible for ‘reasonable people’ to conclude
that a lack of a guardrail around the opening was not a proximate cause of the accident, as these
issues were inextricably interwoven’” (Id. at ¶8).
D. The Court’s Decision
17. In a decision and order dated March 24, 2023, this Court granted plaintiff’s motion,
set aside the jury’s verdict, and ordered a new trial (NYSCEF Doc No. 124 at 7).
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18. While acknowledging that Defendant “raise[d] issues as to the manner of the
Plaintiff’s fall”, the Court noted that “Defendant did not contest that Plaintiff fell through the
opening” (Id. at 6). The Court found that “issues of how [Plaintiff] landed and whether he pivoted
relate to the issue of comparative fault and damages”, and that “whether the Plaintiff was aware
that the [stairway] opening was unguarded while he was on the roof before he descended to the
landing and the fact that he acknowledged that he did not look down while he was on the landing
does not serve to support the uncoupling of negligence and causation [and] [i]t only serves to raise
an issue of comparative fault” (Id.). The Court held that “the two [negligence and causation] are
inextricably interwoven” and that “[b]ut for the condition, the fall would not have occurred”,
explaining that “[t]he very nature of the condition of the fire escape demands that a fair
interpretation of the evidence cannot result in a finding that the Defendant was not a proximate
cause of the accident” (Id. at 6-7).
ARGUMENT
POINT I
REARGUMENT SHOULD BE GRANTED AND,
THEREUPON, THE COURT’S DECISION AND ORDER
SHOULD BE REVERSED
19. Respectfully, the factual determination underlying this Court’s Order, that Plaintiff
fell through the staircase opening, is based on the apparent and mistaken belief that defense
counsel’s statement that plaintiff fell through the stairway opening (a) amounted to a concession,
as a matter of law, that plaintiff fell through the unguarded area where a rail would be, and (b)
required that the jury accept plaintiff’s testimony on this issue. Both are incorrect, as a matter of
law, and reveal that the Court simultaneously discarded both the light most favorable standard of
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review and the sanctity afforded a jury verdict – both of which required of the Court to interpret
all facts and make all inferences entirely in defendants’ favor.
20. Viewed in a light most favorable to Defendant, and honoring the jury’s role as
arbiter of credibility and factual disputes, the record unambiguously supports the jury’s verdict
determining that Defendant was not a proximate cause of the accident.
A. Applicable Standard
21. Reargument is appropriate when a court has overlooked or misapprehended points
of law or fact. See CPLR 2221; 22 NYCRR § 1250.16(d). A motion for reargument is addressed
to the sound discretion of the court and may be granted upon a showing that the court overlooked
or misapprehended the relevant facts or misapplied any controlling principle of law. Rizzotto v.
Allstate Ins. Co., 300 A.D.2d 562 (2d Dep’t 2002).
B. The Jurors Were Not Required To Find That Plaintiff
Fell Through The Staircase Opening
22. First, at the risk of stating the obvious, a stairwell is an “opening”. Here, a
photograph of the fire escape (NYSCEF Doc. No. 111), shows that it was ‘open’ on three sides –
the two unguarded, open edges nearest the ladder, and the open staircase entrance leading to the
third floor fire escape landing. Each of these sides are equally “open,” and one could fall into the
opening over the unguarded sides or over and down the stairs themselves, i.e., a fall forward into
the well. Guardrails are irrelevant to the latter, because – again, at the risk of stating the obvious
– if present, they would render the stairs inaccessible, which is antithetical to the function of a fire
escape.
23. Because a fall into the opening is consistent with either scenario, the Court erred in
treating counsel’s statement as a concession. The law requires the Court to draw all permissible
inferences in favor of a party that has prevailed before a jury. See, e.g., Schwarz v. Valente, 112
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A.D.3d 809, 810 (2d Dep’t 2013). Here, it is permissible to infer that counsel meant nothing more
than that plaintiff indisputably fell into the stairwell. This is especially so given the extensive
discussion – that the Court, respectfully, erroneously disregarded – of plaintiff’s candid admission,
to the EMT, that he fell forward down the stairs, and counsel’s express invitation to the jury to
disregard the entirety of plaintiff’s proof based on that impeachment. The Court, at best,
improperly weighed and interpreted evidence against the prevailing party. On reargument, it
should remedy its error.
24. The Court also erred by treating counsel’s argument, which was, at most, an
informal judicial admission, as a formal judicial admission which stipulated to an element on
which plaintiff bore the burden of proof.
25. Formal judicial admissions, found “in a pleading or stipulation, [are] deliberately
drafted by counsel for the express purpose of limiting and defining the facts in issue.” Skelka v.
Metropolitan, 76 A.D.2d 492, 498 (2d Dep’t 1980) (citation omitted). Indeed, it is well-settled that
parties may, by stipulation, “shape the facts to be determined at trial and thus circumscribe the
relevant issues for the court to the exclusion of disputed matters that otherwise would be available
to the parties.” Deitsch Textiles, Inc. v. New York Prop. Ins. Underwriting Ass'n, 62 N.Y.2d 999,
1002 (1984) (citations omitted). Owing to this purpose, “[f]ormal judicial admissions are
conclusive of the facts admitted in the action in which they are made.” Zegarowicz v. Ripatti, 77
A.D.3d 650, 653 (2d Dep’t 2010); see also Davies v. Lynch, 4 A.D.2d 1008, 1008 (4th Dep’t 1957)
(A stipulation “constitute[s] a judicial admission and [is] a substitute for evidence and [does] away
with the need therefor”).
26. Pursuant to CPLR 2104, a stipulation may be written or oral. Whether written or
oral, “[a] stipulation is an independent contract which is subject to the principles of contract law.”
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McWade v. McWade, 253 A.D.2d 798, 799 (2d Dep’t 1998). To create a binding stipulation, as
with any contract, “there must be a meeting of the minds as to the material terms of the agreement.”
Metro. Enterprises N.Y. v. Khan Enter. Const., Inc., 124 A.D.3d 609, 609 (2d Dep’t 2015). Put
another way, “there must be a manifestation of mutual assent sufficiently definite to assure that
the parties are truly in agreement with respect to all material terms.” Id. (citation and quotation
marks omitted). Here, there can be no stipulation because there was no meeting of the minds as to
the particular language of the stipulation, or any agreement on what even constituted its material
terms. Indeed, there was no agreement at all. Instead, there was a one-sided comment by defense
counsel that went unanswered by plaintiff’s counsel.
27. Even if, arguendo, defense counsel’s statement could be considered an offer to
enter into a stipulation, Plaintiff’s acceptance cannot be presumed. Indeed, a plaintiff is free to
reject a defendant’s concession and offer evidence of a conceded fact since “a colorless admission
by the opponent may sometimes have the effect of depriving the party of the legitimate moral force
of his evidence”. People v. Hills, 140 A.D.2d 71 (2d Dep’t 1988) (citation and quotation marks
omitted); see also Counihan v. J.H. Werbelovsky’s Sons, Inc., 5 A.D.2d 80, 83-84 (1st Dep’t
1957). Moreover, “in order for an acceptance to be effective, it must comply with the terms of the
offer and be clear, unambiguous, and unequivocal.” Ostojic v. Life Medical Technologies, Inc.,
201 A.D.3d 522, 523 (1st Dep’t 2022). As plaintiff’s counsel did not even respond to defense
counsel’s comment, there can be no argument that he accepted any purported offer of stipulation.
See, Russell v. Raynes Assocs. Ltd. P'ship, 166 A.D.2d 6, 15 (1st Dep’t 1991) (“generally, intent
to accept an offer may not be inferred from silence”).
28. The import and necessity of formally entering into a stipulation was not lost on
plaintiff’s counsel, as he worked collaboratively with defense counsels to craft stipulations
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regarding the use of the demonstrative fire escape model and the legal question of the fire escape’s
compliance with the New York City Building Code (NYSCEF Doc. No. 102 at 20:9-29:14, 173:5-
11). The Court later charged the jury in accordance with the language of those agreements (Id. at
177:4-16, 433:21-434:4). No such agreement was made with respect to the issue of whether
plaintiff fell through the fire escape opening, and the Court cannot find that the issue was
stipulated. Indeed, “[w]hen a stipulation is utilized to limit the issues in a case, courts are to
consider only those issues so stipulated.” Ardrey v. 12 W. 27th St. Assocs., 117 A.D.2d 538, 540
(1st Dep’t 1986) (emphasis added), citing Salesian Society, Inc. v. Village of Ellenville, 58 A.D.2d
711, 711 (3d Dep’t 1977). Accordingly, for this and the other reasons set forth above, counsel’s
statement cannot constitute a formal judicial admission, and has no conclusive effect.
29. Nor does counsel’s statement qualify as an informal judicial admission, which is
recognized as a “fact[] incidentally admitted during the trial or in some other judicial proceeding”.
Matter of Liquidation of Union Indem. Ins. Co. of New York, 89 N.Y.2d 94, 103 (1996) (internal
citations and quotation omitted). As set forth in ¶¶ 23-24 above, counsel’s statement was nothing
more than an argument made in response to the evidence introduced at trial. Importantly,
“[c]ounsel’s argument or opinion cannot constitute a judicial admission”, and statements in
summation will only be treated as admissions, and not arguments, where the statement is “one of
fact” and is “made with sufficient formality and conclusiveness, that is, it must be deliberate, clear,
and unequivocal.” Rahman v. Smith, 40 A.D.3d 613, 615 (2d Dep’t 2007).
30. Even if counsel’s statement could qualify as an informal admission, such an
admission would not be conclusive on the factual issue. See Matter of Liquidation of Union Indem.
Ins. Co. of New York, 89 N.Y.2d at 103 (emphasis added); see also, Bellino v. Bellino Const. Co.,
75 A.D.2d 630, 630 (2d Dep’t 1980)(“[plaintiff counsel’s statement] was properly admissible into
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evidence, although not necessarily conclusive against plaintiffs”); Dietrich v. Puff Cab Corp., 63
A.D.3d 778, 789 (2d Dep’t 2009) (an informal judicial admission “is admissible against, although
not binding upon, the party that submitted it”) Wheeler v. Citizens Telecommunications Co. of
New York, Inc., 18 A.D.3d 1002, 1005 (3d Dep’t 2005) (citing Prince, Richardson on Evidence at
Sec. 8-219 for the rule that statements in summation are argument, and thus not admissions at all,
but that even a concession of fact made in a summation is at most, an informal admission, and thus
“not conclusive”).
31. Axiomatically, informal admissions, being not conclusive, cannot be given the
effect of law against a prevailing party under the light most favorable standard the Court is required
to impose. In other words, even if the statement could constitute an admission, it would not be
dispositive on the question of the mechanism of plaintiff’s fall, and would merely be available “for
the jury’s consideration, together with all of the other evidence.” DiCamillo v. City of New York,
245 A.D.2d 332, 333 (2d Dep’t 1997); see also Pitt v. Brough, 132 A.D.2d 836, 837 (3d Dep’t
1987) (informal judicial admissions are “to be weighed by the jury according to the underlying
facts and circumstances”).
32. In any event, whether this Court deems counsel’s summation argument to be a
formal or informal judicial admission is of little consequence. In setting aside the verdict and
ordering a new trial, this Court apparently overlooked that, no matter how this Court classifies the
statement, the jurors were under no obligation to accept defense trial counsel’s alleged concession
that plaintiff fell through the staircase opening.
33. Indeed, this Court never instructed the jury that they must accept defense counsel’s
statement as conclusive on this factual issue. Instead, at every available opportunity, this Court
correctly advised the jury that the attorney’s statements constituted argument, and not evidence,
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and that the jurors were the sole arbiters of the witness’ credibility. Nor did plaintiff’s counsel
request such a charge, which would have affirmatively told the jurors that there was no dispute as
to the fact that plaintiff fell through the open stairway opening, and that such fact was established
for the purpose of this case. See PJI 1:78 General Instruction – Stipulation of Facts.4
34. The significance of the lack of a jury charge on this issue cannot be overstated. It
is well-settled that a party’s contention that a verdict is against the weight of the evidence “must
be reviewed in the context of the court’s charge.” Rivera v. MTA Long Island Bus, 45 A.D.3d 557,
558 (2d Dep’t 2007), citing Rubin v. Pecoraro, 141 A.D.2d 525, 527 (2d Dep’t 1988); see also
Casella v. City of New York, 69 A.D.3d 549, 550–51 (2d Dept. 2010); Rivera v. MTA Long Island
Bus, 45 A.D.3d 557, 558 (2d Dept. 2007); Abre v. Sherman, 36 A.D.3d 725, 726 (2d Dep’t 2007);
Shapira v. Kruger, 231 A.D.2d 509, 510 (2d Dep’t 1996); Gross v. Napoli, 216 A.D.2d 524, 525
(2d Dep’t 1995).
35. Before opening statements, this Court advised the jurors that “[w]hat attorney[s]
say in summation, what they say like what they say [sic] in jury selection, opening statements, or
in the making of objections or motions during the trial is only argument and not evidence”
(NYSCEF Doc. No. 102 [Trial Minutes] at 35:5-8). This Court further advised the jurors that they
“are the sole and exclusive judges of the facts (Id. at 35:17-18), that neither the Court “nor anyone
else can take over [the jury’s] responsibility to determine the facts (Id. at 35:20-21), that “[t]he law
requires that [the jury’s] decisions be made solely on the evidence” (Id. at 36:17-18), and that “[i]n
deciding what evidence you will accept, you must make your own evaluation of the testimony
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“You will remember that during the trial the attorneys made a stipulation in which they agreed to certain facts. This
means that there is no dispute as to these facts and that these facts are established for the purposes of this case. You
must consider the agreed facts along with all of the other evidence presented and give the agreed facts such weight as
you find is appropriate. You will remember that the following facts were agreed to: [summarize stipulated facts.]”
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given by each of the witnesses and decide how much weight, if any, you choose to give to that
testimony” (Id. at 36:21-25, emphasis added).
36. Plaintiff’s counsel, too, advised the jurors that “[w]hatever lawyers say, whatever I
say, whatever Mr. Grillo or Mr. Rabus [Defense counsels] said can be completely thrown out.
Doesn’t need to be listened to. You can’t take what we said. You have to base it [the verdict] on
the evidence” (NYSCEF Doc. No. 110 at 411:2-6).5
37. This Court again, in its final charge to the jury, advised that “[i]n deciding this case,
[the jury] may consider only the exhibits that were admitted into evidence and the testimony of the
witnesses as you heard it in this courtroom or as was read to you or shown to you during the trial”
(Id. at 421:12-15); see also (Id. at 425: 12-14 ) (“You must base your discussions and decisions
solely on the evidence admitted during the trial and that evidence alone”). As it related to Plaintiff’s
testimony specifically, this Court advised the jurors that “[they] may reject the testimony if after
careful consideration of all of the evidence in the case, including the cross-examination of the
witness, you decide you do not believe the testimony or you find it is not reliable” (Id. at 428:19-
23). This instruction was in addition to the general falsus in uno charge that the Court gave to the
jurors, explaining that “if you find that any witness has willfully testified falsely as to an important
matter, the law permits you to disregard completely the entire testimony of that witness upon the
principle that one who testifies falsely about one important matter is likely to testify falsely about
everything. You are not required whatsoever to consider such a witness as totally unbelievable.
You may accept so much of the witness' testimony as you deem true and disregard what you deem
is false” (Id. at 421:2-11).
5
Plaintiff’s counsel understanding of the law has apparently changed, as he asserted in his reply papers that
defendant’s argument that the jury could have disbelieved plaintiff’s testimony that he fell through the stairway
opening “is flawed [], as defendant conceded during the trial that [Plaintiff] fell through the hole, as opposed to
slipping on the steps” (NYSCEF Doc No. 117 at ¶5).
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38. Plaintiff’s counsel was given the opportunity to request whatever jury charges he
wanted during the charge conference, and he did not request a charge pertaining to any alleged
stipulation of this factual issue (NYSCEF Doc. No. 102 at 371:16-381:25). Nor did he object when
such an instruction was not given to the jury (NYSCEF Doc. No 110 at 441: 22-25). Significantly,
counsel did not request such a charge when it became apparent that the jurors were grappling with
the issue of how plaintiff fell during their deliberations, as they simultaneously requested, inter
alia, a readback of plaintiff’s trial and deposition testimony “on how he fell” along with the “full
EMT report”, which noted that plaintiff said he fell face forward (Id. at 442:8-12; Court Exhibit
No. 2). In response to this note, the Court did not instruct the jurors that they must find that plaintiff
fell through the stairway opening. Instead, this Court provided the EMT report to the jurors and
advised the jury that the parties had identified the testimony responsive to their request, whereupon
the court reporter read them that testimony (Id. at 458:4-22). Plaintiff has thus waived any
complaint he might have had concerning the failure to charge the jury on this issue. See Gerdvil
v. Rizzo, 67 A.D.3d 637, 638 (2d Dep’t 2009); CPLR 4110-b.
39. Absent a formal stipulation and/or an instruction from this court that there was no
factual dispute that plaintiff fell through the stairway opening, the jurors had no reason to accept
defense counsel’s concession on this point. Indeed, as Plaintiff was the only witness to the fall,
defense counsel did not have superior knowledge than the jurors and was in no greater position to
assess the truthfulness of this testimony than they were. For this reason, the jurors were free to
afford no weight to defense counsel’s concession that plaintiff fell through the stairway opening.
As discussed elsewhere herein, Defendant is entitled to the inference that this is exactly what they
did.
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C. This Court Misapplied The Light Most Favorable Standard
In Finding That The Issues Of Negligence and Causation
Were Inextricably Woven
40. This Court failed to view the evidence in the light most favorable to Defendant in
finding that Plaintiff fell through the staircase opening. To avoid unnecessary repetition, Defendant
directs this Court to its memorandum of law in opposition to Plaintiff’s 4404 motion (NYSCEF
Doc No. 114 at pp. 6-16) (“Main Memo”), which is incorporated by reference as if fully set forth
herein. A brief summary of Defendat’s argument is set forth below.
41. “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.” Spero
v. Awasthi Ltd. Partners, 106 A.D.3d 988, 989 (2d Dep’t 2013). Moreover, a jury verdict in favor
of a defendant in a tort case is entitled to great deference, and it stands on a different footing than
a plaintiff’s verdict because of the respective burden of proof. A jury can return a defense verdict
simply because it concludes that plaintiff failed to prove one element of a claim, and need not find
that defendant proved some alternate scenario. See Nicastro v. Park, 113 A.D.2d 129, 134 (2d
Dep’t 1985); Wierzbicki v. Kristel, 192 A.D.2d 906, 907 (3d Dep’t 1993); Niewieroski v. National
Cleaning Contractors, 126 A.D.2d 424, 425-426 (1st Dep’t 1987), lv. denied, 70 N.Y.2d 602.
“[T]he court's disagreement with the jury's findings or unhappiness with the harshness of the result
[is] of no consequence.” Gaston v. Viclo Realty Co., 215 A.D.2d 174, 174–75 (1st Dep’t 1995).
42. “A jury's finding that a party was at fault but that such fault was not a proximate
cause of the accident is inconsistent and against the weight of the evidence only when the issues
are so inextricably interwoven as to make it logically impossible to find negligence without also
finding proximate cause.” Garrett v. Manaser, 8 A.D.3d 616, 617 (2d Dep’t 2004).
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43. Here, it was logically possible to reconcile the jury’s finding that the Defendant’s
were negligent for failing to install a guardrail around the stairway opening, but that this negligence
was not a proximate cause of Plaintiff’s accident.
44. First, the jury could have done so by crediting Plaintiff’s testimony that he never
looked down at as he was descending the gooseneck ladder from the roof to the fourth-floor
exterior fire escape (NYSCEF Doc. No. 102 at 116:5-10), and that he never looked down once he
was standing on (and moving about) the fire escape (Id. at 108:6-11, 115:19-20), and by finding
this behavior “so unsafe and unreasonable as to constitute the sole cause of [his] accident.” Thomas
v. City of New York, 16 A.D.3d 203, 203–04 (1st Dep’t 2005).
45. Separately, the jury could have reasonably found that Plaintiff was an incredible
witness, unworthy of belief, and did not credit his testimony. It is uncontested that Plaintiff was
the only witness to his accident, and the only witness who provided evidence that he fell through
the unguarded stairway opening (NYSCEF Doc. No. 102 at 98:20-25, 100:11-13). Plaintiff’s
credibility, then, was of paramount importance. Indeed, even where there is evidence that a
defendant negligently created or permitted a dangerous condition to exist, a plaintiff must still
come forward with competent evidence to demonstrate a causal relationship between the accident
and the alleged defect. Howerter v. Dugan, 232 A.D.2d 524, 525 (2d Dep’t 1996); Khan v. Dugan,
27 A.D.3d 526, 528 (2d Dep’t 2006); Chinsky v. Graham Architectural Prods., 268 A.D.2d 453
(2d Dep’t 2000). If the jurors found plaintiff incredible and rejected his testimony, there would
have been no evidence of his falling through the staircase opening.
46. As mentioned above, the Court gave the jurors a falsus in uno charge, explaining
that “if you find that any witness has willfully testified falsely as to an important matter, the law
permits you to disregard completely the entire testimony of that witness upon the principle that
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one who testifies falsely about one important matter is likely to testify falsely about everything”
(NYSCEF Doc. No. 110 at 421:2-11). As more fully set forth in Defendant’s Main Memo,
plaintiff’s credibility was called into question on a number of important issues, and the jury could
have reasonably found that he testified falsely as to whether he took the photograph of the fire
escape from the roof, or whether he looked down as he descended the ladder, or whether he looked
down once he got on the ladder, or whether he fell backwards, or whether he told the EMT that he
fell face forward. A rejection of Plaintiff’s testimony would have required a defense verdict on the
issue of proximate cause, as “mere speculation as to the cause of an accident, when there could
have been many possible causes, is fatal to a cause of action” See Costantino v. Webel, 57 A.D.3d
472, 472 (2d Dep’t 2008). Because the jury could have reasonably rejected Plaintiff’s testimony,
defendant is entitled to the inference that it did so. Plaintiff’s claim should have failed on this basis
alone.
47. Given that the jury could have simply failed to credit any of plaintiff’s testimony,
it is not necessary that there be any alternative view of the evidence which would reconcile the
jury’s finding of negligence but no proximate cause of his accident. Nevertheless, there is a view
of the evidence which reconciles the jury’s verdict and supports the uncoupling of negligence and
causation. Specifically, the jury could have reasonably concluded that Plaintiff was injured in a
traditional, forward-facing fall while descending the stairs to the third floor of the fire escape – or
indeed, simply slipped on the third floor itself.6 This reasonable view of the evidence would
explain Plaintiff’s statement to EMT Johnson (which he denied making)7 that he “fell face forward
6
Plaintiff’s expert, Mr. Fuchs, conceded that “….if someone were to have slipped on the fire escape balcony, they
could still fall through the opening without a guard” (NYSCEF Doc. No. 102 at 242:13-15).
7
Plaintiff claime
Preview
FILED: KINGS COUNTY CLERK 05/11/2023 04:36 PM INDEX NO. 515902/2016 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 05/11/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ------------------------------------------------------------------X RICHARD DOUGHERTY, Index No.: 515902/2016 Plaintiff, AFFIRMATION IN SUPPORT OF MOTION - against - FOR REARGUMENT AND, UPON 359 LEWIS AVENUE ASSOCIATES, LLC REARGUMENT, DENIAL OF PLAINTIFF’S CPLR Defendant. 4404 MOTION ------------------------------------------------------------------X EMILIO GRILLO, ESQ., an attorney duly admitted to practice law in the Courts of the State of New York, hereby affirms the truth of the following under penalties of perjury: 1. Your Affirmant is an attorney at law and member of GOLDBERG SEGALLA, LLP, counsel for defendant 359 LEWIS AVENUE ASSOCIATES, LLC (“Defendant”), and, as such, is fully familiar with all of the facts and circumstances as herein set forth. 2. This Affirmation is respectfully submitted in support of Defendant’s motion seeking an Order: (1) pursuant to CPLR 2221(d), granting reargument of the Decision and Order of this Court dated March 24, 2023,1 and, upon reargument, denying Plaintiff’s motion to set aside the verdict and order a new trial pursuant to CPLR 4404; and, (2) for such other and further relief as the Court deems just, necessary, and proper. 3. Reargument of this Court’s decision is appropriate for two reasons. First, because it was apparently based on the mistaken belief that the jury was required to adopt defense counsel’s rhetorical remark, made on summation, that plaintiff fell through the stairway opening. Separately, the Court’s factual finding on this issue reveals that it failed to interpret all facts and make all 1 Defendant filed and served a copy of this Court’s Decision and Order with Notice of Entry on April 11, 2023 (NYSCEF Doc. No. 125). 1 1 of 21 FILED: KINGS COUNTY CLERK 05/11/2023 04:36 PM INDEX NO. 515902/2016 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 05/11/2023 inferences entirely in defendants’ favor, as required. Viewed in a light most favorable to Defendant, and honoring the jury’s role as arbiter of credibility and factual disputes, the record unambiguously supports the jury’s verdict determining that Defendant was not a proximate cause of the accident. PROCEDURAL HISTORY 4. This matter concerns personal injuries that Plaintiff allegedly sustained on March 18, 2016, “when he [allegedly] fell through the stairway opening on the rear fourth floor fire escape of defendant’s building.” (NYSCEF Doc No. 97 [Plaintiff’s Affirmation in Support] at ¶3). Plaintiff’s “sole claim of negligence against the defendant was that they allowed a dangerous condition to exist on their premises by failing to have a guardrail around the stairway opening on the fire escape.” (Id. at ¶35). 5. The matter proceeded to trial on April 18, 2022 (NYSDEF Doc. No. 95 [Amended Extract]). During defense counsel’s closing argument, which is not evidence, he stated that the parties agreed that plaintiff fell through the staircase opening (NYSCEF Doc. No. 110 [April 22, 2022 minutes] at 384:9-16).2 Moments later, he explained that plaintiff had, contemporaneously, admitted to an EMT worker that he did not fall into the unguarded side of the opening, but forward, down the stairs (Id. at 399:1-8). On April 22, 2022, the jury returned a unanimous verdict finding the Defendant negligent but that its negligence was not a substantial factor in causing Plaintiff’s accident (NYSDEF Doc. No. 95). 2 The specific words were general and, on their face, do not constitute a concession that plaintiff fell through the unguarded side: “I want you to know that we, Mr. Donadio [Plaintiff’s counsel] and by extension, Mr. Rabus [Defense counsel], we agree on a lot of things in this case. There is no question that there was an accident on March 18th of 2016. There is no question that Mr. Dougherty fell through an open hatch way on my client's fire escape. There is no question on that. We agree on that.” 2 2 of 21 FILED: KINGS COUNTY CLERK 05/11/2023 04:36 PM INDEX NO. 515902/2016 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 05/11/2023 A. Plaintiff’s CPLR 4404 motion 6. On May 20, 2022, Plaintiff moved to set aside the verdict and for a new trial pursuant to CPLR 4404(a) (NYSCEF Doc. Nos. 96-103). Plaintiff argued that “[because] the issues of negligence and proximate cause were inextricably interwoven, it was impossible for a reasonable view of the evidence to determine that defendant’s negligence was not a proximate cause of the plaintiff’s incident” (NYSCEF Doc No. 97 [Affirmation in Support] at ¶8). 7. In his motion, Plaintiff averred that defendant “did not dispute, nor was there any evidence that contradicted Mr. Dougherty’s testimony that he fell into the stairway opening after assessing the window” (Id. at ¶37), and that “it is impossible for ‘reasonable people’ to conclude that a lack of a guardrail around the opening was not a proximate cause of the accident, as these issues were ‘inextricably interwoven’” (Id. at ¶37). B. Defendant’s Opposition to Plaintiff’s CPLR 4404 motion 8. Defendant opposed Plaintiff’s motion, arguing that: (1) plaintiff’s failure to annex the entire trial transcript to his motion rendered it procedurally defective pursuant to CPLR 2214(c); (2) that Plaintiff waived his inconsistent verdict claim as he failed to raise it until after the jury was discharged; and, (3) that there was reasonable view of the evidence under which it is logically possible to reconcile a finding of negligence but no proximate cause (NYSCEF Doc No. 108 [Affirmation in Opposition] at ¶3).3 9. Defendant’s opposition began by discussing the great deference given to a jury verdict in favor of a defendant, which stands in a different footing than a plaintiff’s verdict, based on where the burden of proof lies (NYSCEF Doc No. 114 [Memorandum of Law in Opposition] 3 Defendant is only moving to reargue the Court’s decision relating to its third argument, that it was logically possible to reconcile the jury’s findings on negligence and proximate cause. Thus, in the interest of judicial economy, this memorandum will not set forth defendant’s arguments, plaintiff’s reply, or this Court’s decision relating to arguments (1) or (2). 3 3 of 21 FILED: KINGS COUNTY CLERK 05/11/2023 04:36 PM INDEX NO. 515902/2016 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 05/11/2023 at 6-7). Defendant noted that “a jury can return a defense verdict simply because it concludes that plaintiff failed to prove one element of a claim. It need not find that defendant proved some alternate scenario.” Id. at 6. 10. Defendant argued that “it is logically possible to reconcile the jury’s finding that Defendant was negligent for failing to install a guardrail around the fourth-floor fire escape staircase opening, but that its negligence was not a proximate cause of Plaintiff’s accident. To do so, the jurors were entitled to accept either (a) that that the only substantial factor causing the accident was Plaintiff’s admitted failure to look where he was going, or (b) that Plaintiff simply failed to prove that he was injured due to the absence of the guardrail.” Id. at 7. Defendant argued that, alternatively, the verdict “can also be reconciled and explained by the jurors disbelieving Plaintiff and rejecting his testimony as to how he was injured on the fire escape.” Id. at 8. 11. Defendant noted that it was plaintiff’s burden to “come forward with competent evidence to demonstrate a causal relationship between the accident and the alleged defect”, and that, at trial, “Plaintiff was the only witness to his accident and the only witness who offered evidence that it was a result of his stepping into the unguarded stairway opening” (Id. at 8-9). Defendant argued that plaintiff’s testimony was at times “incredible, confusing, and contrary to other reliable evidence,” and that he was repeatedly impeached during his examination. Id. Based on plaintiff’s specious testimony, the jury “could have concluded that Plaintiff testified falsely as to whether he took the photograph of the fire escape from the roof, or whether he looked down as he descended the ladder, or whether he looked down once he got on the ladder, or whether he fell backwards, or whether he told the EMT that he fell face forward.” Id. at 13-14. 12. Defendant noted that the jury was properly instructed with a falsus in uno charge entitling them to reject plaintiff’s testimony in its entirety and conclude that he simply lied about 4 4 of 21 FILED: KINGS COUNTY CLERK 05/11/2023 04:36 PM INDEX NO. 515902/2016 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 05/11/2023 how the accident occurred. (Id. at 8-9). Because the jury could have reached this conclusion, “defendant is entitled to this inference [that it did so], which suffices, on its own, to defeat Plaintiff’s motion.” Id. at 9-10. In other words, defendant was entitled to the inference that the jury concluded “Plaintiff had failed to carry his burden to establish how he was injured.” Id. at 14. 13. Defendant argued that, separately, “the jurors could have reasonably concluded that Plaintiff was injured in a traditional, forward-facing fall while descending the stairs to the third floor of the fire escape – or indeed, simply slipped on the third floor itself.” Id. at 14. To do so, the jurors could have relied on photographs of the fire escape, plaintiff’s testimony about the scope of his inspection of the fire escape, and Plaintiff’s statement to EMT Johnson that he “fell face forward down one flight of stairs” (Id. at 14-15). As this view of the evidence would reconcile the finding of negligence but no proximate cause, defendant was “entitled to the presumption that the jury adopted this view.” Id. at 15. 14. Crucially, defendant had made this exact argument at trial. Immediately after pointing out that plaintiff had admitted to EMT Johnson that he fell forward, counsel highlighted that plaintiff changed his story at his deposition and stuck with the changed story at trial (NYSCEF Doc. No. 110 [April 22, 2022 minutes] at 399:16-400:4). Counsel immediately connected this contradiction with the falsus in uno charge (Id. at 400:5-16): His Honor, aside from the many legal charges he is going to give you, one charge he is going to give you and it's really important. It's a Latin term called falsus in uno. It stands for the proposition that if you find that someone has testified falsely about a material fact in evidence, you are free to disregard all of their testimony. This entire case is built on the testimony of Richard Dougherty. What he has testified to is completely opposite of what he told the EMS worker who treated him on the day of the accident. So I submit to you, Ladies and Gentlemen, his testimony is not worthy of your belief. His testimony is not worthy of your acceptance. 5 5 of 21 FILED: KINGS COUNTY CLERK 05/11/2023 04:36 PM INDEX NO. 515902/2016 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 05/11/2023 15. Counsel then related an anecdote of his daughter hitting her head and hurting herself when she was ten, comparing it to plaintiff’s case and explaining that in such a case, no one else is to blame (Id. at 401:14-402:3). He concluded by expressly arguing that even if defendant had been negligent, its negligence was not a cause of the accident, which was solely caused by plaintiff’s carelessness (Id. at 403:21-404:5). C. Plaintiff’s Reply to Defendant’s Opposition 16. In reply, Plaintiff reiterated that he was entitled to a new trial because “defendant never argued that Mr. Dougherty would have fallen even if a guardrail had been present.” (NYSCEF Doc. No. 117 [Affirmation in Reply] at ¶4) and that “defendant conceded during the trial that Mr. Dougherty fell through the hole, as opposed to slipping on the steps.” (Id. at ¶5) – in other words, cherry-picking the language appearing at NYSCEF No. 110 at 384, and disregarding the extensive argument that followed. This entire argument was, of course, improper, as it had not been made in Plaintiff’s moving papers and indeed, NYSCEF No. 110 had not been annexed thereto. Plaintiff argued that there was insufficient evidence to support a finding that Plaintiff fell down the stairs, and that such a conclusion could only be reached by impermissible speculation (Id. at ¶9). Plaintiff further averred that, in light of defense counsel’s alleged concession, and in view of the other evidence presented at trial, “it is impossible for ‘reasonable people’ to conclude that a lack of a guardrail around the opening was not a proximate cause of the accident, as these issues were inextricably interwoven’” (Id. at ¶8). D. The Court’s Decision 17. In a decision and order dated March 24, 2023, this Court granted plaintiff’s motion, set aside the jury’s verdict, and ordered a new trial (NYSCEF Doc No. 124 at 7). 6 6 of 21 FILED: KINGS COUNTY CLERK 05/11/2023 04:36 PM INDEX NO. 515902/2016 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 05/11/2023 18. While acknowledging that Defendant “raise[d] issues as to the manner of the Plaintiff’s fall”, the Court noted that “Defendant did not contest that Plaintiff fell through the opening” (Id. at 6). The Court found that “issues of how [Plaintiff] landed and whether he pivoted relate to the issue of comparative fault and damages”, and that “whether the Plaintiff was aware that the [stairway] opening was unguarded while he was on the roof before he descended to the landing and the fact that he acknowledged that he did not look down while he was on the landing does not serve to support the uncoupling of negligence and causation [and] [i]t only serves to raise an issue of comparative fault” (Id.). The Court held that “the two [negligence and causation] are inextricably interwoven” and that “[b]ut for the condition, the fall would not have occurred”, explaining that “[t]he very nature of the condition of the fire escape demands that a fair interpretation of the evidence cannot result in a finding that the Defendant was not a proximate cause of the accident” (Id. at 6-7). ARGUMENT POINT I REARGUMENT SHOULD BE GRANTED AND, THEREUPON, THE COURT’S DECISION AND ORDER SHOULD BE REVERSED 19. Respectfully, the factual determination underlying this Court’s Order, that Plaintiff fell through the staircase opening, is based on the apparent and mistaken belief that defense counsel’s statement that plaintiff fell through the stairway opening (a) amounted to a concession, as a matter of law, that plaintiff fell through the unguarded area where a rail would be, and (b) required that the jury accept plaintiff’s testimony on this issue. Both are incorrect, as a matter of law, and reveal that the Court simultaneously discarded both the light most favorable standard of 7 7 of 21 FILED: KINGS COUNTY CLERK 05/11/2023 04:36 PM INDEX NO. 515902/2016 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 05/11/2023 review and the sanctity afforded a jury verdict – both of which required of the Court to interpret all facts and make all inferences entirely in defendants’ favor. 20. Viewed in a light most favorable to Defendant, and honoring the jury’s role as arbiter of credibility and factual disputes, the record unambiguously supports the jury’s verdict determining that Defendant was not a proximate cause of the accident. A. Applicable Standard 21. Reargument is appropriate when a court has overlooked or misapprehended points of law or fact. See CPLR 2221; 22 NYCRR § 1250.16(d). A motion for reargument is addressed to the sound discretion of the court and may be granted upon a showing that the court overlooked or misapprehended the relevant facts or misapplied any controlling principle of law. Rizzotto v. Allstate Ins. Co., 300 A.D.2d 562 (2d Dep’t 2002). B. The Jurors Were Not Required To Find That Plaintiff Fell Through The Staircase Opening 22. First, at the risk of stating the obvious, a stairwell is an “opening”. Here, a photograph of the fire escape (NYSCEF Doc. No. 111), shows that it was ‘open’ on three sides – the two unguarded, open edges nearest the ladder, and the open staircase entrance leading to the third floor fire escape landing. Each of these sides are equally “open,” and one could fall into the opening over the unguarded sides or over and down the stairs themselves, i.e., a fall forward into the well. Guardrails are irrelevant to the latter, because – again, at the risk of stating the obvious – if present, they would render the stairs inaccessible, which is antithetical to the function of a fire escape. 23. Because a fall into the opening is consistent with either scenario, the Court erred in treating counsel’s statement as a concession. The law requires the Court to draw all permissible inferences in favor of a party that has prevailed before a jury. See, e.g., Schwarz v. Valente, 112 8 8 of 21 FILED: KINGS COUNTY CLERK 05/11/2023 04:36 PM INDEX NO. 515902/2016 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 05/11/2023 A.D.3d 809, 810 (2d Dep’t 2013). Here, it is permissible to infer that counsel meant nothing more than that plaintiff indisputably fell into the stairwell. This is especially so given the extensive discussion – that the Court, respectfully, erroneously disregarded – of plaintiff’s candid admission, to the EMT, that he fell forward down the stairs, and counsel’s express invitation to the jury to disregard the entirety of plaintiff’s proof based on that impeachment. The Court, at best, improperly weighed and interpreted evidence against the prevailing party. On reargument, it should remedy its error. 24. The Court also erred by treating counsel’s argument, which was, at most, an informal judicial admission, as a formal judicial admission which stipulated to an element on which plaintiff bore the burden of proof. 25. Formal judicial admissions, found “in a pleading or stipulation, [are] deliberately drafted by counsel for the express purpose of limiting and defining the facts in issue.” Skelka v. Metropolitan, 76 A.D.2d 492, 498 (2d Dep’t 1980) (citation omitted). Indeed, it is well-settled that parties may, by stipulation, “shape the facts to be determined at trial and thus circumscribe the relevant issues for the court to the exclusion of disputed matters that otherwise would be available to the parties.” Deitsch Textiles, Inc. v. New York Prop. Ins. Underwriting Ass'n, 62 N.Y.2d 999, 1002 (1984) (citations omitted). Owing to this purpose, “[f]ormal judicial admissions are conclusive of the facts admitted in the action in which they are made.” Zegarowicz v. Ripatti, 77 A.D.3d 650, 653 (2d Dep’t 2010); see also Davies v. Lynch, 4 A.D.2d 1008, 1008 (4th Dep’t 1957) (A stipulation “constitute[s] a judicial admission and [is] a substitute for evidence and [does] away with the need therefor”). 26. Pursuant to CPLR 2104, a stipulation may be written or oral. Whether written or oral, “[a] stipulation is an independent contract which is subject to the principles of contract law.” 9 9 of 21 FILED: KINGS COUNTY CLERK 05/11/2023 04:36 PM INDEX NO. 515902/2016 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 05/11/2023 McWade v. McWade, 253 A.D.2d 798, 799 (2d Dep’t 1998). To create a binding stipulation, as with any contract, “there must be a meeting of the minds as to the material terms of the agreement.” Metro. Enterprises N.Y. v. Khan Enter. Const., Inc., 124 A.D.3d 609, 609 (2d Dep’t 2015). Put another way, “there must be a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms.” Id. (citation and quotation marks omitted). Here, there can be no stipulation because there was no meeting of the minds as to the particular language of the stipulation, or any agreement on what even constituted its material terms. Indeed, there was no agreement at all. Instead, there was a one-sided comment by defense counsel that went unanswered by plaintiff’s counsel. 27. Even if, arguendo, defense counsel’s statement could be considered an offer to enter into a stipulation, Plaintiff’s acceptance cannot be presumed. Indeed, a plaintiff is free to reject a defendant’s concession and offer evidence of a conceded fact since “a colorless admission by the opponent may sometimes have the effect of depriving the party of the legitimate moral force of his evidence”. People v. Hills, 140 A.D.2d 71 (2d Dep’t 1988) (citation and quotation marks omitted); see also Counihan v. J.H. Werbelovsky’s Sons, Inc., 5 A.D.2d 80, 83-84 (1st Dep’t 1957). Moreover, “in order for an acceptance to be effective, it must comply with the terms of the offer and be clear, unambiguous, and unequivocal.” Ostojic v. Life Medical Technologies, Inc., 201 A.D.3d 522, 523 (1st Dep’t 2022). As plaintiff’s counsel did not even respond to defense counsel’s comment, there can be no argument that he accepted any purported offer of stipulation. See, Russell v. Raynes Assocs. Ltd. P'ship, 166 A.D.2d 6, 15 (1st Dep’t 1991) (“generally, intent to accept an offer may not be inferred from silence”). 28. The import and necessity of formally entering into a stipulation was not lost on plaintiff’s counsel, as he worked collaboratively with defense counsels to craft stipulations 10 10 of 21 FILED: KINGS COUNTY CLERK 05/11/2023 04:36 PM INDEX NO. 515902/2016 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 05/11/2023 regarding the use of the demonstrative fire escape model and the legal question of the fire escape’s compliance with the New York City Building Code (NYSCEF Doc. No. 102 at 20:9-29:14, 173:5- 11). The Court later charged the jury in accordance with the language of those agreements (Id. at 177:4-16, 433:21-434:4). No such agreement was made with respect to the issue of whether plaintiff fell through the fire escape opening, and the Court cannot find that the issue was stipulated. Indeed, “[w]hen a stipulation is utilized to limit the issues in a case, courts are to consider only those issues so stipulated.” Ardrey v. 12 W. 27th St. Assocs., 117 A.D.2d 538, 540 (1st Dep’t 1986) (emphasis added), citing Salesian Society, Inc. v. Village of Ellenville, 58 A.D.2d 711, 711 (3d Dep’t 1977). Accordingly, for this and the other reasons set forth above, counsel’s statement cannot constitute a formal judicial admission, and has no conclusive effect. 29. Nor does counsel’s statement qualify as an informal judicial admission, which is recognized as a “fact[] incidentally admitted during the trial or in some other judicial proceeding”. Matter of Liquidation of Union Indem. Ins. Co. of New York, 89 N.Y.2d 94, 103 (1996) (internal citations and quotation omitted). As set forth in ¶¶ 23-24 above, counsel’s statement was nothing more than an argument made in response to the evidence introduced at trial. Importantly, “[c]ounsel’s argument or opinion cannot constitute a judicial admission”, and statements in summation will only be treated as admissions, and not arguments, where the statement is “one of fact” and is “made with sufficient formality and conclusiveness, that is, it must be deliberate, clear, and unequivocal.” Rahman v. Smith, 40 A.D.3d 613, 615 (2d Dep’t 2007). 30. Even if counsel’s statement could qualify as an informal admission, such an admission would not be conclusive on the factual issue. See Matter of Liquidation of Union Indem. Ins. Co. of New York, 89 N.Y.2d at 103 (emphasis added); see also, Bellino v. Bellino Const. Co., 75 A.D.2d 630, 630 (2d Dep’t 1980)(“[plaintiff counsel’s statement] was properly admissible into 11 11 of 21 FILED: KINGS COUNTY CLERK 05/11/2023 04:36 PM INDEX NO. 515902/2016 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 05/11/2023 evidence, although not necessarily conclusive against plaintiffs”); Dietrich v. Puff Cab Corp., 63 A.D.3d 778, 789 (2d Dep’t 2009) (an informal judicial admission “is admissible against, although not binding upon, the party that submitted it”) Wheeler v. Citizens Telecommunications Co. of New York, Inc., 18 A.D.3d 1002, 1005 (3d Dep’t 2005) (citing Prince, Richardson on Evidence at Sec. 8-219 for the rule that statements in summation are argument, and thus not admissions at all, but that even a concession of fact made in a summation is at most, an informal admission, and thus “not conclusive”). 31. Axiomatically, informal admissions, being not conclusive, cannot be given the effect of law against a prevailing party under the light most favorable standard the Court is required to impose. In other words, even if the statement could constitute an admission, it would not be dispositive on the question of the mechanism of plaintiff’s fall, and would merely be available “for the jury’s consideration, together with all of the other evidence.” DiCamillo v. City of New York, 245 A.D.2d 332, 333 (2d Dep’t 1997); see also Pitt v. Brough, 132 A.D.2d 836, 837 (3d Dep’t 1987) (informal judicial admissions are “to be weighed by the jury according to the underlying facts and circumstances”). 32. In any event, whether this Court deems counsel’s summation argument to be a formal or informal judicial admission is of little consequence. In setting aside the verdict and ordering a new trial, this Court apparently overlooked that, no matter how this Court classifies the statement, the jurors were under no obligation to accept defense trial counsel’s alleged concession that plaintiff fell through the staircase opening. 33. Indeed, this Court never instructed the jury that they must accept defense counsel’s statement as conclusive on this factual issue. Instead, at every available opportunity, this Court correctly advised the jury that the attorney’s statements constituted argument, and not evidence, 12 12 of 21 FILED: KINGS COUNTY CLERK 05/11/2023 04:36 PM INDEX NO. 515902/2016 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 05/11/2023 and that the jurors were the sole arbiters of the witness’ credibility. Nor did plaintiff’s counsel request such a charge, which would have affirmatively told the jurors that there was no dispute as to the fact that plaintiff fell through the open stairway opening, and that such fact was established for the purpose of this case. See PJI 1:78 General Instruction – Stipulation of Facts.4 34. The significance of the lack of a jury charge on this issue cannot be overstated. It is well-settled that a party’s contention that a verdict is against the weight of the evidence “must be reviewed in the context of the court’s charge.” Rivera v. MTA Long Island Bus, 45 A.D.3d 557, 558 (2d Dep’t 2007), citing Rubin v. Pecoraro, 141 A.D.2d 525, 527 (2d Dep’t 1988); see also Casella v. City of New York, 69 A.D.3d 549, 550–51 (2d Dept. 2010); Rivera v. MTA Long Island Bus, 45 A.D.3d 557, 558 (2d Dept. 2007); Abre v. Sherman, 36 A.D.3d 725, 726 (2d Dep’t 2007); Shapira v. Kruger, 231 A.D.2d 509, 510 (2d Dep’t 1996); Gross v. Napoli, 216 A.D.2d 524, 525 (2d Dep’t 1995). 35. Before opening statements, this Court advised the jurors that “[w]hat attorney[s] say in summation, what they say like what they say [sic] in jury selection, opening statements, or in the making of objections or motions during the trial is only argument and not evidence” (NYSCEF Doc. No. 102 [Trial Minutes] at 35:5-8). This Court further advised the jurors that they “are the sole and exclusive judges of the facts (Id. at 35:17-18), that neither the Court “nor anyone else can take over [the jury’s] responsibility to determine the facts (Id. at 35:20-21), that “[t]he law requires that [the jury’s] decisions be made solely on the evidence” (Id. at 36:17-18), and that “[i]n deciding what evidence you will accept, you must make your own evaluation of the testimony 4 “You will remember that during the trial the attorneys made a stipulation in which they agreed to certain facts. This means that there is no dispute as to these facts and that these facts are established for the purposes of this case. You must consider the agreed facts along with all of the other evidence presented and give the agreed facts such weight as you find is appropriate. You will remember that the following facts were agreed to: [summarize stipulated facts.]” 13 13 of 21 FILED: KINGS COUNTY CLERK 05/11/2023 04:36 PM INDEX NO. 515902/2016 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 05/11/2023 given by each of the witnesses and decide how much weight, if any, you choose to give to that testimony” (Id. at 36:21-25, emphasis added). 36. Plaintiff’s counsel, too, advised the jurors that “[w]hatever lawyers say, whatever I say, whatever Mr. Grillo or Mr. Rabus [Defense counsels] said can be completely thrown out. Doesn’t need to be listened to. You can’t take what we said. You have to base it [the verdict] on the evidence” (NYSCEF Doc. No. 110 at 411:2-6).5 37. This Court again, in its final charge to the jury, advised that “[i]n deciding this case, [the jury] may consider only the exhibits that were admitted into evidence and the testimony of the witnesses as you heard it in this courtroom or as was read to you or shown to you during the trial” (Id. at 421:12-15); see also (Id. at 425: 12-14 ) (“You must base your discussions and decisions solely on the evidence admitted during the trial and that evidence alone”). As it related to Plaintiff’s testimony specifically, this Court advised the jurors that “[they] may reject the testimony if after careful consideration of all of the evidence in the case, including the cross-examination of the witness, you decide you do not believe the testimony or you find it is not reliable” (Id. at 428:19- 23). This instruction was in addition to the general falsus in uno charge that the Court gave to the jurors, explaining that “if you find that any witness has willfully testified falsely as to an important matter, the law permits you to disregard completely the entire testimony of that witness upon the principle that one who testifies falsely about one important matter is likely to testify falsely about everything. You are not required whatsoever to consider such a witness as totally unbelievable. You may accept so much of the witness' testimony as you deem true and disregard what you deem is false” (Id. at 421:2-11). 5 Plaintiff’s counsel understanding of the law has apparently changed, as he asserted in his reply papers that defendant’s argument that the jury could have disbelieved plaintiff’s testimony that he fell through the stairway opening “is flawed [], as defendant conceded during the trial that [Plaintiff] fell through the hole, as opposed to slipping on the steps” (NYSCEF Doc No. 117 at ¶5). 14 14 of 21 FILED: KINGS COUNTY CLERK 05/11/2023 04:36 PM INDEX NO. 515902/2016 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 05/11/2023 38. Plaintiff’s counsel was given the opportunity to request whatever jury charges he wanted during the charge conference, and he did not request a charge pertaining to any alleged stipulation of this factual issue (NYSCEF Doc. No. 102 at 371:16-381:25). Nor did he object when such an instruction was not given to the jury (NYSCEF Doc. No 110 at 441: 22-25). Significantly, counsel did not request such a charge when it became apparent that the jurors were grappling with the issue of how plaintiff fell during their deliberations, as they simultaneously requested, inter alia, a readback of plaintiff’s trial and deposition testimony “on how he fell” along with the “full EMT report”, which noted that plaintiff said he fell face forward (Id. at 442:8-12; Court Exhibit No. 2). In response to this note, the Court did not instruct the jurors that they must find that plaintiff fell through the stairway opening. Instead, this Court provided the EMT report to the jurors and advised the jury that the parties had identified the testimony responsive to their request, whereupon the court reporter read them that testimony (Id. at 458:4-22). Plaintiff has thus waived any complaint he might have had concerning the failure to charge the jury on this issue. See Gerdvil v. Rizzo, 67 A.D.3d 637, 638 (2d Dep’t 2009); CPLR 4110-b. 39. Absent a formal stipulation and/or an instruction from this court that there was no factual dispute that plaintiff fell through the stairway opening, the jurors had no reason to accept defense counsel’s concession on this point. Indeed, as Plaintiff was the only witness to the fall, defense counsel did not have superior knowledge than the jurors and was in no greater position to assess the truthfulness of this testimony than they were. For this reason, the jurors were free to afford no weight to defense counsel’s concession that plaintiff fell through the stairway opening. As discussed elsewhere herein, Defendant is entitled to the inference that this is exactly what they did. 15 15 of 21 FILED: KINGS COUNTY CLERK 05/11/2023 04:36 PM INDEX NO. 515902/2016 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 05/11/2023 C. This Court Misapplied The Light Most Favorable Standard In Finding That The Issues Of Negligence and Causation Were Inextricably Woven 40. This Court failed to view the evidence in the light most favorable to Defendant in finding that Plaintiff fell through the staircase opening. To avoid unnecessary repetition, Defendant directs this Court to its memorandum of law in opposition to Plaintiff’s 4404 motion (NYSCEF Doc No. 114 at pp. 6-16) (“Main Memo”), which is incorporated by reference as if fully set forth herein. A brief summary of Defendat’s argument is set forth below. 41. “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.” Spero v. Awasthi Ltd. Partners, 106 A.D.3d 988, 989 (2d Dep’t 2013). Moreover, a jury verdict in favor of a defendant in a tort case is entitled to great deference, and it stands on a different footing than a plaintiff’s verdict because of the respective burden of proof. A jury can return a defense verdict simply because it concludes that plaintiff failed to prove one element of a claim, and need not find that defendant proved some alternate scenario. See Nicastro v. Park, 113 A.D.2d 129, 134 (2d Dep’t 1985); Wierzbicki v. Kristel, 192 A.D.2d 906, 907 (3d Dep’t 1993); Niewieroski v. National Cleaning Contractors, 126 A.D.2d 424, 425-426 (1st Dep’t 1987), lv. denied, 70 N.Y.2d 602. “[T]he court's disagreement with the jury's findings or unhappiness with the harshness of the result [is] of no consequence.” Gaston v. Viclo Realty Co., 215 A.D.2d 174, 174–75 (1st Dep’t 1995). 42. “A jury's finding that a party was at fault but that such fault was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause.” Garrett v. Manaser, 8 A.D.3d 616, 617 (2d Dep’t 2004). 16 16 of 21 FILED: KINGS COUNTY CLERK 05/11/2023 04:36 PM INDEX NO. 515902/2016 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 05/11/2023 43. Here, it was logically possible to reconcile the jury’s finding that the Defendant’s were negligent for failing to install a guardrail around the stairway opening, but that this negligence was not a proximate cause of Plaintiff’s accident. 44. First, the jury could have done so by crediting Plaintiff’s testimony that he never looked down at as he was descending the gooseneck ladder from the roof to the fourth-floor exterior fire escape (NYSCEF Doc. No. 102 at 116:5-10), and that he never looked down once he was standing on (and moving about) the fire escape (Id. at 108:6-11, 115:19-20), and by finding this behavior “so unsafe and unreasonable as to constitute the sole cause of [his] accident.” Thomas v. City of New York, 16 A.D.3d 203, 203–04 (1st Dep’t 2005). 45. Separately, the jury could have reasonably found that Plaintiff was an incredible witness, unworthy of belief, and did not credit his testimony. It is uncontested that Plaintiff was the only witness to his accident, and the only witness who provided evidence that he fell through the unguarded stairway opening (NYSCEF Doc. No. 102 at 98:20-25, 100:11-13). Plaintiff’s credibility, then, was of paramount importance. Indeed, even where there is evidence that a defendant negligently created or permitted a dangerous condition to exist, a plaintiff must still come forward with competent evidence to demonstrate a causal relationship between the accident and the alleged defect. Howerter v. Dugan, 232 A.D.2d 524, 525 (2d Dep’t 1996); Khan v. Dugan, 27 A.D.3d 526, 528 (2d Dep’t 2006); Chinsky v. Graham Architectural Prods., 268 A.D.2d 453 (2d Dep’t 2000). If the jurors found plaintiff incredible and rejected his testimony, there would have been no evidence of his falling through the staircase opening. 46. As mentioned above, the Court gave the jurors a falsus in uno charge, explaining that “if you find that any witness has willfully testified falsely as to an important matter, the law permits you to disregard completely the entire testimony of that witness upon the principle that 17 17 of 21 FILED: KINGS COUNTY CLERK 05/11/2023 04:36 PM INDEX NO. 515902/2016 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 05/11/2023 one who testifies falsely about one important matter is likely to testify falsely about everything” (NYSCEF Doc. No. 110 at 421:2-11). As more fully set forth in Defendant’s Main Memo, plaintiff’s credibility was called into question on a number of important issues, and the jury could have reasonably found that he testified falsely as to whether he took the photograph of the fire escape from the roof, or whether he looked down as he descended the ladder, or whether he looked down once he got on the ladder, or whether he fell backwards, or whether he told the EMT that he fell face forward. A rejection of Plaintiff’s testimony would have required a defense verdict on the issue of proximate cause, as “mere speculation as to the cause of an accident, when there could have been many possible causes, is fatal to a cause of action” See Costantino v. Webel, 57 A.D.3d 472, 472 (2d Dep’t 2008). Because the jury could have reasonably rejected Plaintiff’s testimony, defendant is entitled to the inference that it did so. Plaintiff’s claim should have failed on this basis alone. 47. Given that the jury could have simply failed to credit any of plaintiff’s testimony, it is not necessary that there be any alternative view of the evidence which would reconcile the jury’s finding of negligence but no proximate cause of his accident. Nevertheless, there is a view of the evidence which reconciles the jury’s verdict and supports the uncoupling of negligence and causation. Specifically, the jury could have reasonably concluded that Plaintiff was injured in a traditional, forward-facing fall while descending the stairs to the third floor of the fire escape – or indeed, simply slipped on the third floor itself.6 This reasonable view of the evidence would explain Plaintiff’s statement to EMT Johnson (which he denied making)7 that he “fell face forward 6 Plaintiff’s expert, Mr. Fuchs, conceded that “….if someone were to have slipped on the fire escape balcony, they could still fall through the opening without a guard” (NYSCEF Doc. No. 102 at 242:13-15). 7 Plaintiff claime