Hernandez v. City of New York , 598 N.Y.S.2d 499 ( 1993 )

—Judgment, Supreme Court, New York County (Edward Lehner, J.), entered May 28, 1992, which adjudged that plaintiffs recover from defendant $90,043.70 plus interest, costs and disbursements, unanimously affirmed, without costs.

Plaintiffs brought suit to recover for injuries sustained by the infant plaintiff due to the collapse of a fence against which he was leaning. In light of the photographs and the testimonial evidence, it is clear that a jury reasonably could have found defendant had constructive notice of the defective condition of the fence. Indeed, the missing bricks in the fence posts and the presence of extensive rust, conditions which had existed for more than a year, should have put a reasonable person on notice of the defective condition (Gordon v American Museum of Natural History, 67 NY2d 836; see also, Schneider v Kings Highway Hosp. Ctr., 67 NY2d 743).

We also find that as the jury verdict was inconsistent with regard to the damages awarded, and since the jury had not yet been discharged, the trial court correctly directed the jury to reconsider the inconsistency (see, Rogan v Mullins, 22 App Div 117). Concur—Milonas, J. P., Ellerin, Ross, Asch and Kassal, JJ.