Opinion
March 20, 1975
Appeals (1) from a judgment of the Supreme Court in favor of plaintiffs, entered March 5, 1974 in Saratoga County, upon a verdict rendered at Trial Term and (2) from an order of said court, entered March 5, 1974, which denied defendant's motion to set aside the verdict. Plaintiffs are the owners of a home in Clifton Park, Saratoga County, built by defendant. After a snow storm, the roof collapsed. Plaintiffs brought this action based in negligence to recover the amount paid to defendant for repair of the roof. After trial, the jury found for plaintiffs in an amount stipulated to by the parties. This appeal ensued. Both parties offered expert testimony as to the cause of the collapse of the roof. Defendant's chief objection at the trial and on this appeal is that plaintiffs' expert was improperly permitted to testify because he had not examined the roof until after it was repaired. The record reveals, however, that the witness examined certain photographs taken immediately after the roof collapsed. He testified that the pictures clearly showed the manner in which the roof came down and it was neither a material failure nor a design failure but, rather, a disassembly of the roof truss due to improper connection at the time of construction. There was, in our view, ample foundation and testimony to justify the court's reception of this expert's opinion. The fact that he viewed photographs instead of the actual situation merely went to the weight of his testimony. While the defendant's expert disagreed with plaintiffs' expert and opined that the collapse was due to the heavy snow, this conflict created only questions of fact and credibility for the jury to resolve. Implicitly, the jury accepted the testimony of plaintiffs' expert and rejected that of defendant's. We find no reason to disturb its conclusion. Judgment and order affirmed, with costs. Herlihy, P.J., Greenblott, Sweeney, Main and Larkin, JJ., concur.