| Treat v Wegmans Food Mkts., Inc. |
| 2007 NY Slip Op 10272 [46 AD3d 1403] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| Christine Treat, Appellant, v Wegmans Food Markets, Inc.,Respondent. |
—[*1] Culley, Marks, Tanenbaum & Pezzulo, LLP, Rochester (Diana B. Cavall of counsel), fordefendant-respondent.
Appeal from a judgment of the Supreme Court, Monroe County (Evelyn Frazee, J.), enteredAugust 1, 2006 in a personal injury action. The judgment, after a nonjury trial, dismissed thecomplaint.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries she allegedlysustained when she fell at a store owned by defendant. Contrary to plaintiff's contention,Supreme Court did not err in determining after a nonjury trial that, although plaintiff establishedthat defendant was negligent, she failed to establish that defendant's negligence was a proximatecause of the aggravation of her preexisting injuries and her need for surgery. "On a bench trial,the decision of the fact-finding court should not be disturbed upon appeal unless it is obvious thatthe court's conclusions could not be reached under any fair interpretation of the evidence"(Claridge Gardens v Menotti, 160 AD2d 544, 544-545 [1990]; see Thoreson vPenthouse Intl., 80 NY2d 490, 495 [1992], rearg denied 81 NY2d 835 [1993]; Matter of City of Syracuse Indus. Dev.Agency [Alterm, Inc.], 20 AD3d 168, 170 [2005]). The evidence established thatplaintiff had degenerative disease of the cervical spine before she fell in defendant's store, anddefendant presented evidence at trial attributing plaintiff's need for surgery to, inter alia, herpreexisting condition, rather than the fall. Indeed, one of defendant's expert physicians testifiedthat, based upon his review of plaintiff's medical records, he would have recommended thatplaintiff undergo surgery on her cervical spine prior to the fall. Although on direct examinationplaintiff's surgeon attributed plaintiff's need for surgery to the fall, he testified oncross-examination that his opinion was based upon information from plaintiff that she had noneck pain prior to the fall. When presented with the information that plaintiff had sought medicaltreatment for neck pain a few months before she fell, plaintiff's surgeon testified that it waspossible that plaintiff would have required surgery even if she had not fallen. The court had theadvantage of observing the witnesses and assessing their credibility (see R.G. Egan Equip., Inc. v Polymag Tek,Inc., 13 AD3d 1130 [2004]; see also Peters v Nicotera, 248 AD2d 969 [1998])and, viewing the evidence in the light most favorable to sustain the judgment (see Wayne Coop. Ins. Co. vWoodward, 21 AD3d 1270, 1272 [2005]; Matter of City of Syracuse Indus. Dev.Agency [Alterm, Inc.], 20 AD3d at 170), we [*2]concludethat there is a fair interpretation of the evidence to support the court's determination thatdefendant's negligence was not a proximate cause of the aggravation of plaintiff's preexistinginjuries and plaintiff's need for surgery (see generally Claridge Gardens, 160 AD2d at544-545). Present—Scudder, P.J., Gorski, Lunn, Fahey and Peradotto, JJ.