In a memorandum decision and order dated March 3, 2021, the Appellate Division, Second Department, reversed the judgment, on the law, the facts, and in the exercise of discretion, granted the plaintiffs' motion pursuant to CPLR 4404 (a) to set aside the jury verdict as contrary to the weight of the evidence and for a new trial, reinstated the complaint, and remitted the matter to this Court for a new trial on the issue of liability (see Montesione v Newell Rubbermaid, Inc., 192 A.D.3d 680 [2d Dept 2021]). The Second Department "agree[d] with the plaintiffs that the evidence so preponderate[d] in favor of the plaintiffs on the issue of whether the subject step stool collapsed as the injured plaintiff stood on it causing her accident, that the jury could not have reached the verdict it did by any fair interpretation of the evidence" (Montesione v Newell Rubbermaid, Inc., 192 A.D.3d at 682, citing Annunziata v City of New York, 175 A.D.3d 438 [2d Dept 2019]; Canale v L & M Assoc, of N.Y., Inc., 155 A.D.3d 675 [2d Dept 2017]).

If the original fact determination was made by a jury, as in this case, and the Appellate Division concludes that the jury has made erroneous factual findings, the court is required to order a new trial, since it does not have the power to make new findings of fact in a jury case’ " ( Montesione v. Newell Rubbermaid, Inc., 192 A.D.3d 680, 681, 139 N.Y.S.3d 848, quoting Cohen v. Hallmark Cards, 45 N.Y.2d at 498, 410 N.Y.S.2d 282, 382 N.E.2d 1145 ). " ‘[T]he mere fact that some testimony in the record has created a factual issue does not deprive the [court] of the power to intervene in an appropriate case’ " ( Annunziata v. City of New York, 175 A.D.3d at 445, 107 N.Y.S.3d 355, quoting Nicastro v. Park, 113 A.D.2d at 135, 495 N.Y.S.2d 184 ).

In contrast, Petitioner visited the island annually for many years and testified as to her efforts to market the property and the difficulties involved therewith. The Court may therefore reject any such portions of Mr. Ranson's testimony (Montesione v. Newell Rubbermaid, Inc., 192 A.D.3d 680, 682 [2d Dep't 2021] ["expert's opinion not based on facts is worthless" [internal citation omitted]). Given the above, the Objectant failed to prove the date by which the Cat Island Property should have been sold, or even that it could have been sold prior to 2022.

Even if it did not substantially conform to the statutory template, such a defect is not fatal, and can be disregarded in the absence of a showing of actual prejudice (Citimortgage, Inc. v Zagoory, 198 A.D.3d 715, 717 [2d Dep't 2021]). Additionally, "it is settled and unquestioned law that opinion evidence must be based on facts in the record or personally known to the witness" (Montesione v Newell Rubbermaid, Inc., 192 A.D.3d 680, 681-682 [2d Dep't 2021]). "[A]n expert's opinion not based on facts is worthless" (Id.).