Opinion
2001-07989
Submitted January 9, 2003.
January 27, 2003.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Queens County (Kitzes, J.), entered July 10, 2000, as, upon the granting of the application of the defendant H. J. Heinz Co. pursuant to CPLR 4404 to set aside a jury verdict finding that it was 45% at fault in the happening of the accident and for judgment as a matter of law, is in favor of that defendant and against them, dismissing the complaint insofar as asserted against that defendant.
Sidney M. Segall, Port Washington, N.Y., for appellants.
Diamond, Cardo, King, Peters Fodera, New York, N.Y. (Deborah F. Peters of counsel), for respondent.
McCarter English, LLP, New York, N.Y. (David S. Osterman and Joseph R. Di Salvo of counsel), for defendant Owens-Illinois Corp., d/b/a Owens-Brockway Glass Containers, f/k/a Brockway Glass Co., Inc.
Before: MYRIAM J. ALTMAN, J.P., NANCY E. SMITH, LEO F. McGINITY, SANDRA L. TOWNES, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed insofar as appealed from, with one bill of costs payable to the respondent.
On a post-verdict motion for judgment as a matter of law, the trial court must determine whether any rational basis exists for the conclusion reached by the jury (see CPLR 4404[a]; Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499). "The test is not whether the jury erred in weighing the evidence presented, but whether any viable evidence exists to support the verdict (Barker v. Bice, 87 A.D.2d 908)" (Kozlowski v. City of Amsterdam, 111 A.D.2d 476, 477). Here, the plaintiffs failed to provide sufficient evidence from which a jury could conclude that the bottle in question was defective when it left the control of the defendant H. J. Heinz Co. (hereinafter Heinz) (see Halloran v. Virginia Chems., 41 N.Y.2d 386; Speller v. Sears, Roebuck and Co., 294 A.D.2d 349; Sideris v. Simon A. Rented Servs., 254 A.D.2d 408). Accordingly, the Supreme Court properly set aside the verdict and directed judgment as a matter of law in favor of Heinz.
The plaintiffs' remaining contentions are without merit.
ALTMAN, J.P., SMITH, McGINITY and TOWNES, JJ., concur.