Opinion
1069 CA 18–00264
11-09-2018
Glasco ROZIER, Plaintiff–Appellant, v. BTNH, INC., Doing Business as Delaware Nursing & Rehabilitation Center, Defendant–Respondent. (Appeal No. 2.)
JOY A. KENDRICK, BUFFALO, FOR PLAINTIFF–APPELLANT. UNDERBERG & KESSLER LLP, BUFFALO (COLIN D. RAMSEY OF COUNSEL), FOR DEFENDANT–RESPONDENT.
JOY A. KENDRICK, BUFFALO, FOR PLAINTIFF–APPELLANT.
UNDERBERG & KESSLER LLP, BUFFALO (COLIN D. RAMSEY OF COUNSEL), FOR DEFENDANT–RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action to recover damages for injuries that he allegedly sustained when he slipped and fell on ice in defendant's parking lot. In appeal No. 1, plaintiff appeals from an order that, inter alia, denied that part of his pretrial motion seeking to preclude habit evidence. In appeal No. 2, plaintiff appeals from a judgment entered on the jury's verdict finding no negligence on the part of defendant. We note at the outset that the appeal from the order in appeal No. 1 must be dismissed inasmuch as the order in that appeal is subsumed in the judgment in appeal No. 2 (see Hughes v. Nussbaumer, Clarke & Velzy, 140 A.D.2d 988, 988, 529 N.Y.S.2d 658 [4th Dept. 1988] ; Chase Manhattan Bank, N.A. v. Roberts & Roberts, 63 A.D.2d 566, 567, 404 N.Y.S.2d 608 [1st Dept. 1978]; see also CPLR 5501[a][1] ).
Contrary to plaintiff's contention, Supreme Court properly allowed defendant's maintenance staff to testify concerning their custom and habit with respect to snow and ice removal procedures. " ‘Proof of a deliberate repetitive practice by one in complete control of the circumstances’ is admissible provided that the party presenting such proof demonstrates ‘a sufficient number of instances of the conduct in question’ " ( Biesiada v. Suresh, 309 A.D.2d 1245, 1245, 764 N.Y.S.2d 739 [4th Dept. 2003], quoting Halloran v. Virginia Chems., 41 N.Y.2d 386, 392, 393 N.Y.S.2d 341, 361 N.E.2d 991 [1977] ; see Mancuso v. Koch [appeal No. 2], 74 A.D.3d 1736, 1738, 904 N.Y.S.2d 832 [4th Dept. 2010] ). Here, the testimony of the maintenance staff concerning their daily routine in maintaining the subject parking lot was properly admitted as evidence of their conduct prior to the incident at issue.
We reject plaintiff's further contention that the court erred in denying his posttrial motion seeking, inter alia, to set aside the verdict as against the weight of the evidence. It is well established that " ‘[a] verdict rendered in favor of a defendant may be successfully challenged as against the weight of the evidence only when the evidence so preponderated in favor of the plaintiff that it could not have been reached on any fair interpretation of the evidence’ " ( Sauter v. Calabretta, 103 A.D.3d 1220, 1220, 959 N.Y.S.2d 579 [4th Dept. 2013] ). "That determination is addressed to the sound discretion of the trial court, but if the verdict is one that reasonable persons could have rendered after receiving conflicting evidence, the court should not substitute its judgment for that of the jury" ( Ruddock v. Happell, 307 A.D.2d 719, 720, 763 N.Y.S.2d 868 [4th Dept. 2003] ). Here, based upon our review of the record, we conclude that the court properly refused to set aside the jury verdict as against the weight of the evidence (see generally Rew v. Beilein [appeal No. 2], 151 A.D.3d 1735, 1737–1738, 57 N.Y.S.3d 808 [4th Dept. 2017] ).
In light of our determination, plaintiff's contentions regarding certain evidentiary rulings relating to proof of damages are moot (see generally Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714–715, 431 N.Y.S.2d 400, 409 N.E.2d 876 [1980] ). We have considered plaintiff's remaining contentions and conclude that none warrants reversal or modification of the judgment.