Opinion
588 CA 17–01120
04-27-2018
Lizzie CYRUS and Abraham Cyrus, Plaintiffs–Appellants, v. WAL–MART STORES EAST, LP, Defendant–Respondent.
POWERS & SANTOLA, LLP, ALBANY (MICHAEL J. HUTTER OF COUNSEL), FOR PLAINTIFFS–APPELLANTS. BROWN HUTCHINSON LLP, ROCHESTER (T. ANDREW BROWN OF COUNSEL), FOR DEFENDANT–RESPONDENT.
POWERS & SANTOLA, LLP, ALBANY (MICHAEL J. HUTTER OF COUNSEL), FOR PLAINTIFFS–APPELLANTS.
BROWN HUTCHINSON LLP, ROCHESTER (T. ANDREW BROWN OF COUNSEL), FOR DEFENDANT–RESPONDENT.
PRESENT: SMITH, J.P., NEMOYER, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum:
Plaintiffs commenced this action seeking damages for injuries that were sustained by plaintiff Lizzie Cyrus when she slipped and fell in one of defendant's stores. On appeal from a judgment entered upon a jury verdict in favor of defendant, plaintiffs correctly concede that they failed to preserve for our review their contention that the verdict is against the weight of the evidence inasmuch as "there is no indication in the record that [they] made a posttrial motion to set aside the verdict pursuant to CPLR 4404(a)" ( Likos v. Niagara Frontier Tr. Metro Sys., Inc., 149 A.D.3d 1474, 1476, 53 N.Y.S.3d 739 [4th Dept. 2017] ). We decline plaintiffs' request to exercise our power to address that contention in the interest of justice (see generally Merrill v. Albany Med. Ctr. Hosp., 71 N.Y.2d 990, 991, 529 N.Y.S.2d 272, 524 N.E.2d 873 [1988] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.