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Altagracia Simo v New York City Transit Authority 2002 NY Slip Op 30023(U) April 23, 2002 Supreme Court, Queens County Docket Number: 0004946/4946 Judge: Phyllis Orlikoff Flug Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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SHORT-FORM ORDER NEW YORK SUPREME COURT
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QUEENS COUNTY
IA Part 9

Present: HON. PHYLLIS ORLIKOFF FLUG, Just ice ALTAGRACIA SIMO, Plaintiff, -against
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Index Number..4946/95 Motion Date . . . 1/29/02 Motion Cal. Number . . . . . . . . . 34 Trial Cal. Number . . . .
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THE NEW YORK CITY TRANSIT AUTHORITY, THE CITY OF NEW YORK, NAB CONSTRUCTION CORP./GROW TUNNELING CORP., J.V. and JOSEPH RADUSA CRAFTS, INC., Defendant.

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The following papers numbered 1 to 7 read on motion #34 Notice of Motion Memorandum of Law ( 2 ) Affirmations in Opposition Reply Affirmation Letter dated 2/28/02 with Copy of decision
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The following papers numbered 1 to 5 read on motion #35 Notice of Motion Memorandum of Law Affirmation in Opposition Reply Affirmation
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The defendant, New York City Transit Authority (\T.A.,) has moved for an order setting aside the verdict and granting judgment to it dismissing the complaint and all cross-claims against it; or in the alternative, directing the defendant NAB Construction Corp./Grow Tunneling Corp ("NAB") to indemnify the movant pursuant to the contractual indemnification provisions of the contract.
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The defendant, NAB seeks, by separate motion, the same relief with the exception of indemnification.

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After trial, the jury found the defendant NAB created the defect and was 60% negligent, while the T.A. was 40% negligent. "It is well settled that, reviewing a jury verdict for sufficiency, a court must examine the evidence in the light most favorable to the prevailing party . . . and that before the court may find the verdict is not supported by sufficient evidence, it must first conclude there is simply no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by a jury on the basis of the evidence presented at trial" (Grass1 v. Ulricli, 87 NY2d 954 [19961; Cohen v. Hall-mark Cards, 45 NY2d 493, 499 [1978]; Kravis v . Horn,254 AD2d 462 [2d Dept. 19981 ) . Based upon this record, this court cannot so conclude. There is ample evidence to sustain the jury's findings of liability and apportionment. In evaluating whether an assessment of damages is excessive, the court must determine whether it deviates materially from what would be reasonable compensation (see, CPLR

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