The consultant's affidavit merely referenced Plaintiffs' expert disclosure, in which it was claimed that defendants should have placed at least nine inches of mulch cover or cushioning material under the monkey bars to comply with CPSC guidelines and that the alleged failure to do so, combined with negligent supervision, proximately caused the child's injury. The physician opined that the child's injuries would probably have been less severe if the monkey bars had been lower or the cushioning surface deeper. Neither expert inspected the playground or the ground cover, instead basing their views solely on documentary evidence, including the deposition testimony, photographs, the measurements taken by the child's father, and medical records ( see Banks v Freeport Union Free School Dist., 302 AD2d at 342; see also Dillman v Albany R.C. Diocese, 237 AD2d 767, 768-769). Their opinions as to the material's composition and depth were based solely upon the measurements taken by the child's father.
We note at the outset that, although the order from which plaintiff's appeal was taken was subsumed in the judgment, we exercise our discretion to treat the notice of appeal as valid and deem the appeal as taken from the judgment ( see Hughes v Nussbaumer, Clarke Velzy, 140 AD2d 988; see also CPLR 5520 [c]). We further note at the outset that the record does not support plaintiff's contention that the jury "'was substantially confused by the verdict sheet and the charge and was thus unable to make a proper determination upon adequate consideration of the evidence'" ( Dillman v Albany R.C. Diocese, 237 AD2d 767, 767; cf. Helton v Hirschman, 17 AD3d 987, 989). Contrary to the further contentions of plaintiff, the court's charge "'accurately stated the law as it applie[d] to the facts in this case'" and did not prevent the jury from considering the issues before it ( Gerbino v Tinseltown USA, 13 AD3d 1068, 1071).
For example, the question regarding the negligence of the "protesters" on the verdict sheet was framed differently from the questions regarding the negligence of defendants and plaintiff. Thus, because the jury may have been substantially confused by the inclusion of the "protesters" on the verdict sheet, a new trial must be granted ( cf. Dillman v. Albany R.C. Diocese, 237 AD2d 767, 767-768). All concur except Smith and Lawton, JJ., who dissent and vote to affirm in the following memorandum.
However, no indication was made by the jury that the language of the charge confused the jurors. We conclude that the charge given the jury clearly permitted it to find liability without finding that the lighter produced at trial was the lighter involved in the accident and plaintiff has made no showing of any juror confusion with respect to that issue ( see Murphy v. Finer Home Alterations, 300 AD2d 782, 783; Mosher v. Murell, 295 AD2d 729, 731, lv denied 98 NY2d 613; Dillman v. Albany R.C. Diocese, 237 AD2d 767, 767-768). Moreover, because we find no basis to support plaintiff's position that the charge and verdict sheet, when read together, caused substantial juror confusion on the issue that proved determinative — whether a BIC lighter was involved — plaintiff's further arguments need not be addressed. Plaintiff's remaining claims are unpreserved.
Defendant's subsequent motion to set aside the verdict was denied, prompting this appeal. In reviewing the motion to set aside the verdict as against the weight of the evidence, our inquiry distills to whether the evidence so preponderated in favor of defendant that the verdict could not have been reached upon any fair interpretation of the evidence ( see, Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746; Dillman v. Albany R. C. Diocese, 237 A.D.2d 767, 768). Although we are mindful of the deference to be accorded to the credibility determinations made by the jury ( see, Whitmore v. Rowe 245 A.D.2d 669, 670), as well as the jury's assessment of conflicting evidence ( see generally, Casey v. Slattery, 213 A.D.2d 890, 892), we are constrained to conclude, based upon our review of the record before us, that there simply is no credible evidence to support the jury's finding that defendant was negligent. Viewing the evidence in the light most favorable to plaintiff, as we must ( see, Karney v. Arnot-Ogden Mem. Hosp., 251 A.D.2d 780, 782, lv dismissed 92 N.Y.2d 942), the proof establishes that immediately prior to the accident, Whitcavitch and defendant were in the process of baling hay; as noted previously, the hay wagon was attached to the baler which, in turn, was attached to the tractor operated by defendant.
At the conclusion of the trial, the jury found that defendant was not negligent. Plaintiff's subsequent motion to set aside the verdict was granted, and this appeal by defendant followed. In our view, Supreme Court properly set aside the verdict inasmuch as "`"the evidence so preponderate [d] in favor of the [plaintiff] that [the verdict] could not have been reached on any fair interpretation of the evidence"'" ( Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746, quoting Moffatt v. Moffatt, 86 A.D.2d 864, affd 62 N.Y.2d 875; see, Dillman v. Albany R. C. Diocese, 237 A.D.2d 767, 768). Defendant was under a duty to operate her vehicle with reasonable care having regard to the actual and potential hazards existing in view of the inclement weather and to maintain a reasonable speed and control of her vehicle given those conditions. In our view, the totality of the evidence adduced at trial compels the inference that defendant was negligent in the operation and control of her automobile and renders the resulting verdict in her favor, contrary to the weight of the evidence ( cf., Pretto v. Leiwant, 80 A.D.2d 579, 580). Indeed, absent some other explanation for defendant's loss of control of her vehicle, the only reasonable inference to be drawn is that she was operating it at an imprudent rate of speed and did not have it under control.