Opinion
2018–09230, 2018–13127 Index No. 34486/08
03-09-2022
Carolyn F. MCNEILL, etc., et al., appellants, v. TOWN OF ISLIP, respondent, et al., defendant.
Gruenberg Kelly Della (Mischel & Horn, P.C., New York, NY [Scott T. Horn ], of counsel), for appellants. McGiff Halverson Dooley, LLP (Lewis Johs Avallone Aviles, LLP, Islandia, NY [Robert J. Cimino, Robert A. Lifson, and Amy E. Bedell ], of counsel), for respondent.
Gruenberg Kelly Della (Mischel & Horn, P.C., New York, NY [Scott T. Horn ], of counsel), for appellants.
McGiff Halverson Dooley, LLP (Lewis Johs Avallone Aviles, LLP, Islandia, NY [Robert J. Cimino, Robert A. Lifson, and Amy E. Bedell ], of counsel), for respondent.
HECTOR D. LASALLE, P.J., FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, PAUL WOOTEN, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Suffolk County (Joseph Farneti, J.), dated June 11, 2018, and (2) a judgment of the same court entered September 21, 2018. The order, insofar as appealed from, granted that branch of the motion of the defendant Town of Islip which was pursuant to CPLR 4404(a) to set aside a jury verdict in favor of the plaintiffs and for judgment as a matter of law dismissing the complaint insofar as asserted against it. The judgment, upon the order, is in favor of the defendant Town of Islip and against the plaintiffs dismissing the complaint insofar as asserted against that defendant. ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the defendant Town of Islip.
The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1] ).
On June 29, 2007, the plaintiff Carolyn F. McNeill (hereinafter the injured plaintiff) allegedly was injured when a street name sign pole in the Town of Islip fell and struck her on the head. In September 2008, the injured plaintiff, and her mother suing derivatively, commenced this personal injury action against the Town and another defendant. Following a jury trial, the jury returned a verdict, inter alia, finding that the Town was negligent. Thereafter, the Town moved, among other things, pursuant to CPLR 4404(a) to set aside the jury verdict and for judgment as a matter of law dismissing the complaint insofar as asserted against it. In an order dated June 11, 2018, the Supreme Court, inter alia, granted that branch of the Town's motion. On September 21, 2018, the court entered a judgment in favor of the Town and against the plaintiffs dismissing the complaint insofar as asserted against the Town. The plaintiffs appeal.
"A motion pursuant to CPLR 4404(a) to set aside a jury verdict and for judgment as a matter of law will 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" ( Bacon v. Bostany, 104 A.D.3d 625, 627, 960 N.Y.S.2d 190 [internal quotation marks omitted]; see Cohen v. Hallmark Cards, Inc., 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145 ). " ‘In considering such a motion, the trial court 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’ " ( Kowalski v. Oliver, 189 A.D.3d 1199, 1200, 134 N.Y.S.3d 229, quoting Feldman v. Knack, 170 A.D.3d 667, 669, 95 N.Y.S.3d 306 ).
Here, viewing the evidence in the light most favorable to the plaintiffs, there was a valid line of reasoning and permissible inferences from which the jury could have found that the accident in which the street name sign pole fell onto the injured plaintiff's head was caused by deterioration and rusting of the pole over time. However, there was no valid line of reasoning and permissible inferences which could possibly lead a rational jury to conclude that the Town had constructive notice of the alleged defective condition of the pole (see Harris v. Village of E. Hills, 41 N.Y.2d 446, 449, 393 N.Y.S.2d 691, 362 N.E.2d 243 ; Schillaci v. Town of Islip, 163 A.D.3d 600, 600–601, 81 N.Y.S.3d 208 ; Connolly v. Incorporated Vil. of Lloyd Harbor, 139 A.D.3d 656, 657, 32 N.Y.S.3d 185 ; Hilliard v. Town of Greenburgh, 301 A.D.2d 572, 572–573, 754 N.Y.S.2d 29 ). "A defendant has constructive notice of a defect when it is visible and apparent, and has existed for a sufficient length of time before the accident such that it could have been discovered and corrected" ( Hayden v. 334 Dune Rd., LLC, 196 A.D.3d 634, 635, 152 N.Y.S.3d 450 [internal quotation marks omitted]; see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837–838, 501 N.Y.S.2d 646, 492 N.E.2d 774 ; Zimmer v. County of Suffolk, 190 A.D.3d 898, 898–899, 139 N.Y.S.3d 615 ). "When a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed" ( Hayden v. 334 Dune Rd., LLC, 196 A.D.3d at 635, 152 N.Y.S.3d 450 [internal quotation marks omitted]; see Alexandridis v. Van Gogh Contr. Co., 180 A.D.3d 969, 972, 120 N.Y.S.3d 347 ). Here, the mere presence of rust on the pole, standing alone, was insufficient to establish that the Town had constructive notice of the alleged defect (see Williams v. Church Homes Assoc., L.P., 49 A.D.3d 386, 387, 854 N.Y.S.2d 357 ; Garcia v. Northcrest Apts. Corp., 24 A.D.3d 208, 209, 806 N.Y.S.2d 44 ; Rapino v. City of New York, 299 A.D.2d 470, 471, 750 N.Y.S.2d 319 ).
The parties’ remaining contentions either are without merit or need not be reached in light of our determination.
Accordingly, the Supreme Court properly granted that branch of the Town's motion which was pursuant to CPLR 4404(a) to set aside the jury verdict and for judgment as a matter of law dismissing the complaint insofar as asserted against it.
LASALLE, P.J., CONNOLLY, IANNACCI and WOOTEN, JJ., concur.