Opinion
09-13-2017
Evan THOMPSON, appellant, v. EAST COAST 6, LLC, et al., respondents.
Kazmierczuk & McGrath, Forest Hills, NY (Katherine M. McGrath and Joseph Kazmierczuk of counsel), for appellant. Leon R. Kowalski (McGaw, Alventosa & Zajac, Jericho, NY [Andrew Zajac and Joseph Horowitz ], of counsel), for respondents.
Kazmierczuk & McGrath, Forest Hills, NY (Katherine M. McGrath and Joseph Kazmierczuk of counsel), for appellant.
Leon R. Kowalski (McGaw, Alventosa & Zajac, Jericho, NY [Andrew Zajac and Joseph Horowitz ], of counsel), for respondents.
MARK C. DILLON, J.P., SHERI S. ROMAN, ROBERT J. MILLER, and HECTOR D. LaSALLE, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Kings County (Baily–Schiffman, J.), entered April 6, 2016, as, upon a jury verdict in favor of the defendant East Coast 6, LLC, and against him on the issue of liability, is in favor of the defendant East Coast 6, LLC, and against him dismissing the complaint insofar as asserted against the defendant East Coast 6, LLC.
ORDERED that the judgment is affirmed insofar as appealed from, with costs.
The plaintiff allegedly tripped and fell at a construction site when he attempted to walk over an area of the floor that was covered in tarps and safety netting. He commenced this action against, among others, East Coast 6, LLC (hereinafter East Coast), the owner of the property where the accident allegedly occurred, to recover damages for violations of, among other things, Labor Law § 241(6). At the trial, defense counsel impeached the plaintiff with inconsistent statements the plaintiff had made during a deposition. In addition, East Coast presented evidence indicating that the plaintiff did not report the accident until nearly two months after it occurred. Based on this evidence, East Coast argued to the jury that the plaintiff's account of the accident should not be believed.
The jury returned a verdict in favor of East Coast and against the plaintiff. The judgment appealed from was, among other things, in favor of East Coast and against the plaintiff dismissing the complaint insofar as asserted against East Coast. We affirm the judgment insofar as appealed from.
To the extent that the plaintiff challenges the legal sufficiency of the evidence, the issue is unpreserved for appellate review, as he failed to move for judgment as a matter of law (see Sessa v. Seddio, 132 A.D.3d 656, 656, 17 N.Y.S.3d 319 ; Henriquez v. Rovt, 122 A.D.3d 680, 680, 995 N.Y.S.2d 729 ).
"Whether a jury verdict should be set aside as contrary to the weight of the evidence does not involve a question of law, but rather requires a discretionary balancing of many factors" ( Nicastro v. Park, 113 A.D.2d 129, 133, 495 N.Y.S.2d 184 ). "[A] jury verdict in favor of a defendant should not be set aside as contrary to the weight of the evidence unless the evidence preponderates so heavily in the plaintiff's favor that the verdict could not have been reached on any fair interpretation of the evidence" ( Daniels v. Simon, 99 A.D.3d 658, 659, 951 N.Y.S.2d 745 ; see Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163 ; Scarpulla v. Williams, 147 A.D.3d 1101, 1102, 46 N.Y.S.3d 914 ; Russo v. Mignola, 142 A.D.3d 1064, 1065–1066, 38 N.Y.S.3d 209 ; Felicia v. Boro Crescent Corp., 105 A.D.3d 697, 698, 964 N.Y.S.2d 158 ; Lopreiato v. Scotti, 101 A.D.3d 829, 829, 954 N.Y.S.2d 895 ).
"It is for the jury to make determinations as to the credibility of the witnesses, and deference in this regard is accorded to the jury, which had the opportunity to see and hear the witnesses" (Scarpulla v. Williams, 147 A.D.3d at 1102, 46 N.Y.S.3d 914; see Russo v. Mignola, 142 A.D.3d at 1065–1066, 38 N.Y.S.3d 209; Felicia v. Boro Crescent Corp., 105 A.D.3d at 698, 964 N.Y.S.2d 158 ; Lopreiato v. Scotti, 101 A.D.3d at 829, 954 N.Y.S.2d 895 ). Accordingly, "if the jury's resolution of the controversy in favor of the defendant is grounded upon a fair interpretation of the evidence, ‘that finding should be sustained ... in the absence of some other reason for disturbing it in the interest of justice’ " ( Green v. New York, 138 A.D.2d 676, 677, 526 N.Y.S.2d 489, quoting Nicastro v. Park, 113 A.D.2d at 134, 495 N.Y.S.2d 184 ; cf. Imbrey v. Prudential Ins. Co., 286 N.Y. 434, 440, 36 N.E.2d 651 ).
Here, the jury was presented with valid reasons to doubt the plaintiff's credibility, and to conclude that the accident either did not happen at all or that it did not happen in the way that the plaintiff claimed (see Daniels v. Simon, 99 A.D.3d at 659, 951 N.Y.S.2d 745 ). Under the circumstances, since it cannot be said that the evidence so preponderated in favor of the plaintiff that the verdict could not have been reached on any fair interpretation of the evidence, we decline to disturb it (see Lolik v. Big V Supermarkets, 86 N.Y.2d at 746, 631 N.Y.S.2d 122, 655 N.E.2d 163 ; Scarpulla v. Williams, 147 A.D.3d at 1102, 46 N.Y.S.3d 914; Russo v. Mignola, 142 A.D.3d at 1065–1066, 38 N.Y.S.3d 209; Felicia v. Boro Crescent Corp., 105 A.D.3d at 698, 964 N.Y.S.2d 158 ; Lopreiato v. Scotti, 101 A.D.3d at 829, 954 N.Y.S.2d 895 ).
The plaintiff's contention regarding the trial court's charge to the jury is unpreserved for appellate review since the plaintiff did not object to the charge on the grounds now argued (see Abuzeed v. Mile Sq. Transp., Inc., 119 A.D.3d 621, 622, 988 N.Y.S.2d 888 ; Donina v. D.N.R. Group of Cos., Inc., 114 A.D.3d 720, 720, 980 N.Y.S.2d 514 ).