Opinion
2011-11-15
Michael STERN, et al., appellants,v.Jeffrey GOLDSTEIN, respondent, et al., defendant.
Reisman Rubeo & McClure, LLP, Hawthorne, N.Y. (Mark A. Rubeo, Jr., Mark I. Reisman, and Christopher W. McClure of counsel), for appellants.Wilson, Bave, Conboy, Cozza & Couzens, P.C., White Plains, N.Y. (Robert J. Gironda of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) a judgment of the Supreme Court, Westchester County (Liebowitz, J.), entered June 16, 2010, which, upon the denial of their motion and renewed motion pursuant to CPLR 4401, made at the close of their case and at the close of the evidence on the issue of liability, respectively, for judgment as a matter of law on the issue of liability, and upon a jury verdict on the issue of liability finding that the defendant was not negligent in the happening of the subject accident, is in favor of the defendant and against them dismissing the complaint, and (2) an order of the same court entered September 23, 2010, which denied their motion pursuant to CPLR 4404 (a), in effect, to set aside the judgment and for judgment as a matter of law on the issue of liability or, in the alternative, in effect, to set aside the judgment and for a new trial on the issue of liability on the ground that the verdict was contrary to the weight of the evidence or the product of substantial juror confusion.
ORDERED that the judgment and the order are affirmed, with one bill of costs.
Contrary to the plaintiffs' contention, the Supreme Court properly denied their motion pursuant to CPLR 4401, made at the close of their case on the issue of liability, for judgment as a matter of law on that issue ( see Gracie Sq. Realty Corp. v. Choice Realty Corp., 305 N.Y. 271, 278, 113 N.E.2d 416; Martin Fireproofing Corp. v. Maryland Cas. Co., 45 Misc.2d 354, 359, 257 N.Y.S.2d 100, affd. 26 A.D.2d 910, 275 N.Y.S.2d 375), as well as their renewed motion pursuant to CPLR 4401, made at the close of the evidence on the issue of liability, for judgment as a matter of law on that issue ( see generally Szczerbiak v. Pilat, 90 N.Y.2d 553, 556, 664 N.Y.S.2d 252, 686 N.E.2d 1346; Tapia v. Dattco, Inc., 32 A.D.3d 842, 844, 821 N.Y.S.2d 124). Also contrary to the plaintiffs' contention, the Supreme Court properly denied those branches of their motion pursuant to CPLR 4404(a) which were, in effect, to set aside the judgment and for judgment as a matter of law on the issue of liability ( see generally Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145;
Tapia v. Dattco, Inc., 32 A.D.3d at 844, 821 N.Y.S.2d 124; Broadie v. St. Francis Hosp., 25 A.D.3d 745, 746, 807 N.Y.S.2d 656), or for a new trial on the issue of liability on the ground that the verdict was contrary to the weight of the evidence ( see Corcoran v. People's Ambulette Serv., 237 A.D.2d 402, 403, 656 N.Y.S.2d 877; Gianniosis v. LID Mgt. & Finishing Serv. Co., 194 A.D.2d 413, 413, 599 N.Y.S.2d 233; Borgo v. Sontag, 98 A.D.2d 786, 788, 469 N.Y.S.2d 805; cf. Mohamed v. Frische, 223 A.D.2d 628, 628, 636 N.Y.S.2d 859; Avila v. Mellen, 131 A.D.2d 408, 409, 515 N.Y.S.2d 856; see generally Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163; Tapia v. Dattco, Inc., 32 A.D.3d at 845, 821 N.Y.S.2d 124; Nicastro v. Park, 113 A.D.2d 129, 133, 495 N.Y.S.2d 184). Finally, contrary to the plaintiffs' contention, the Supreme Court properly denied that branch of their motion pursuant to CPLR 4404(a) which was, in effect, to set aside the judgment and for a new trial on the issue of liability on the ground that the verdict was the product of substantial juror confusion ( see Mattei v. Figueroa, 262 A.D.2d 459, 460, 692 N.Y.S.2d 119; cf. Roberts v. County of Westchester, 278 A.D.2d 216, 217, 717 N.Y.S.2d 276; Clarke v. Order of Sisters of St. Dominic, 273 A.D.2d 431, 432–433, 710 N.Y.S.2d 108; DePasquale v. Morbark Indus., 254 A.D.2d 450, 450, 678 N.Y.S.2d 777; Trotter v. Johnson, 210 A.D.2d 946, 947, 621 N.Y.S.2d 761).
MASTRO, J.P., CHAMBERS, SGROI and MILLER, JJ., concur.