Plaintiff was seeking damages after she was injured while stepping into an elevator in her apartment building. Plaintiff claimed that when she entered the lobby after returning from grocery shopping, neither elevator was there. She and another woman waited, and, when an elevator arrived, plaintiff tripped and fell because the elevator was not level with the floor. However, defendant produced eyewitnesses who testified that plaintiff, who was carrying several bags, had been running to catch an open elevator which was waiting.

The jury found that defendant had negligently failed to maintain, repair or prevent the so-called misleveling of the elevator, and that defendant knew or should have known of this condition on the day of plaintiff's accident. The jury apportioned 25% fault to plaintiff and 75% to defendant. However, the judgment of nearly one-half-million dollars does not reflect the plaintiff's apportionment.

Defense counsel objected that the verdict was inherently inconsistent, and the First Department agreed, in Dubec v. NYC Housing Authority, which was decided on April 26, 2007. Saying that the trial court should have (1) directed the jury to reconsider the verdict, or (2) ordered a new trial, pursuant to CPLR 4111(c), the court took down the jury verdict and remanded for a new trial.

The court also gave directions as to a necessary jury charge regarding plaintiff's photographs of the misleveled elevator, and as to the appropriate timing for certain witness testimony.

While it was academic as regards this particular judgment, the court said that the trial court was within its bounds in ordering an interest rate of less than 9%.