The Court of Appeals reversed, noting first that the jury could have found that Skippy's president did not communicate the warnings to decedent and in that event there would be no support for the pivotal factual predicate on which our decision was grounded. The Court of Appeals further stated that "under the charge given by the trial court the jury could have found Red Diamond liable irrespective of whether Skippy Ice Cream adequately warned the decedent or negligently failed to do so" ( Cohen v. St. Regis Paper Co., 64 N.Y.2d 656, 658). The case was remitted to us for consideration of other issues raised by Red Diamond but not previously resolved.
Aside from the fact that this information could have been provided on the original motion and no excuse has been offered for the failure to do so, because it is an assertion exclusively within the knowledge of the moving party, it is subject to an attack on credibility. (Cohen v St. Regis Paper Co., 64 N.Y.2d 656, 658.) Although, where an issue of credibility is involved, the granting of summary judgment is generally inappropriate (Frame v Markowitz, 125 A.D.2d 442 [2d Dept 1986]; Koen v Carl Co., 70 A.D.2d 695 [3d Dept 1979]), here Dr. Storch also claims to have received the updated warnings.
Critically, however, nothing in either decision suggests that the motions to dismiss did not raise the same specific objection that the defendant pressed on appeal. Accordingly, neither decision is at odds with the wealth of precedent holding that, when no timely and specific objection is taken to a charge, "the law as stated in th[e] charge became the law applicable to the determination of the rights of the parties in th[e] litigation and thus established the legal standard by which the sufficiency of the evidence to support the verdict must be judged" ( Harris, 64 NY2d at 702 [emphasis added]; see Cohen v St. Regis Paper Co., 64 NY2d 656, revg 99 AD2d 659, 660; Ramos v New York City Hous. Auth., 249 AD2d 59; Kroupova v Hill, 242 AD2d 218, lv dismissed in part and denied in part 92 NY2d 1013; Rodriguez v Davis Equip. Corp., 235 AD2d 222). Neither Greelish nor Gallagher cited any authority supporting that conclusion and neither appears to have been cited for that proposition.
This is particularly true with regard to the basement, where HHC deployed a 24-hour manned security post, two pull-down gates used at night and on weekends, and a second officer deployed at one of the gates when It was up. Plaintiff, in sum, on his motion to set aside the verdict as against the weight of the evidence, as well as on this appeal, has ignored the evidence that did not comport with his point of view and would have us consider only that favorable to him ( see, Maharam v. Maharam, 235 A.D.2d 226). The jury, upon consideration of all of the evidence, properly exercised its right to determine what evidence, or portions of evidence, it believed or disbelieved ( see, Cohen v. St. Regis Paper Co., 64 N.Y.2d 656; Moore v. Leaseway Transp. Corp., 49 N.Y.2d 720; Accardi v. City of New York, 121 A.D.2d 489). The record clearly establishes and the jury properly found that defendant HHC set up a reasonable security plan under the circumstances and meticulously implemented it. Having done so, it fulfilled its legal obligation to plaintiff's decedent in that regard, although, sadly, it proved not to be enough. The law does not require, however, that the hospital act as an insurer and that its security system be flawless.
It is evident that McClane has a great personal interest in the matter. Thus, we find him to be an interested witness, whose testimony a fact finder may be inclined to discredit. If his testimony were not found credible, there would be no support for the plaintiff's position (see, Cohen v. St. Regis Paper Co., 64 N.Y.2d 656, 658). Furthermore, only McClane has personal knowledge of his purpose and destination at the time his vehicle struck the plaintiff. Where a matter is within a person's exclusive knowledge, on a motion for summary judgment an issue of credibility may be raised requiring a trial (see, Castillo v General Acc. Ins. Co., 111 A.D.2d 112, 113).