Opinion
CA 06-00106.
September 29, 2006.
Appeal from a judgment of the Supreme Court, Erie County (Joseph R. Glownia, J.), entered August 22, 2005 in a personal injury action. The judgment, upon a jury verdict, adjudged that defendant is 70% at fault.
CLAUSEN MILLER P.C., NEW YORK (MELISSA A. MURPHY-PETROS OF COUNSEL), AND LUSTIG BROWN, LLP, BUFFALO, FOR DEFENDANT-APPELLANT.
PAUL WILLIAM BELTZ, P.C., BUFFALO (DEBRA A. NORTON OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
Present — Hurlbutt, J.P., Gorski, Martoche and Pine, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed with costs.
Memorandum: Defendant contends that Supreme Court erred in denying that part of its motion for judgment notwithstanding the verdict or, in the alternative, to set aside the verdict as against the weight of the evidence and grant a new trial. We disagree. It was not "utterly irrational" for the jury to conclude that the presence of plaintiff Anthony Valvo on defendant's premises was foreseeable ( Cohen v Hallmark Cards, 45 NY2d 493, 499). Furthermore, the verdict is not against the weight of the evidence inasmuch as it cannot be said that the evidence so preponderated in favor of defendant that the verdict could not have been reached upon any fair interpretation of the evidence ( see Lolik v Big V Supermarkets, 86 NY2d 744, 746).
We have considered defendant's remaining contentions and conclude that they are without merit.