| MacKillop v City of Syracuse |
| 2008 NY Slip Op 00926 [48 AD3d 1197] |
| February 1, 2008 |
| Appellate Division, Fourth Department |
| Dawn MacKillop, Appellant, v City of Syracuse, Respondent.(Appeal No. 1.) |
—[*1] Rory A. McMahon, Corporation Counsel, Syracuse (James P. McGinty of counsel), fordefendant-respondent.
Appeal from a judgment of the Supreme Court, Onondaga County (Brian F. DeJoseph, J.),entered June 28, 2006 in a personal injury action. The judgment, upon a jury verdict of no causeof action, awarded defendant costs and disbursements in the amount of $1,504.60.
It is hereby ordered that the judgment so appealed from is unanimously affirmed withoutcosts.
Memorandum: Plaintiff commenced this action seeking damages for injuries that shesustained in a motor vehicle accident allegedly caused by defendant's negligent design,construction and maintenance of a traffic intersection and negligent placement of a traffic sign inthat intersection. The jury returned a verdict of no cause of action, and Supreme Court deniedplaintiff's post-trial motion to set aside the verdict and for a new trial on the grounds that theverdict is against the weight of the evidence, that during deliberations the jury was improperlygiven photographs that were not admitted in evidence, and that the verdict sheet was"prejudicially confusing." We affirm.
Contrary to plaintiff's contention, the verdict is not against the weight of the evidence, i.e.,the evidence did not so preponderate in favor of plaintiff that the verdict could not have beenreached on any fair interpretation of the evidence (see generally Lolik v Big VSupermarkets, 86 NY2d 744, 746 [1995]). Although defendant admitted that it was negligentin using a certain road sign in the intersection, the jury found that such negligence was not asubstantial factor in causing the accident. "A jury finding that a party was negligent but that suchnegligence was not a proximate cause of the accident is . . . against the weight ofthe evidence only when the issues are so inextricably interwoven as to make it logicallyimpossible to find negligence without also finding proximate cause" (Skowronski v Mordino, 4 AD3d782, 783 [2004] [internal quotation marks omitted]; see McCulley v Sandwick, 43 AD3d 624, 626 [2007], appealdismissed 9 NY3d 976 [2007]), and that is not the case here (see generally Schaefer vGuddemi, 182 AD2d 808, 809 [1992]).
We reject the further contention of plaintiff that she was prejudiced by the fact that the [*2]jurors were permitted to view photographs that were not admitted inevidence. "The rule is well settled that the delivery of papers to the jury not in evidence. . . when or after it retires for deliberation . . . [voids] the verdictunless the matters contained therein are not prejudicial or if it appears that they were not read [orviewed] by any [members] of the jury" (Guntzer v Healy, 176 App Div 543, 544 [1917]).Here, the papers delivered to the jury were enlarged photographs of vehicles in the intersection,and the court properly concluded that plaintiff failed to establish that the photographs wereprejudicial to her (cf. Razza v Sanchez-Roda, 173 AD2d 594 [1991]). In any event, thecourt's inquiry into the matter established that the only juror who actually viewed thephotographs in fact disregarded them (see Guntzer, 176 App Div at 544).
Finally, as plaintiff correctly conceded in her post-trial motion papers, she failed to object tothe verdict sheet, and she thus failed to preserve for our review her contention concerning theverdict sheet (see Halbreich vBraunstein, 13 AD3d 1137 [2004], lv denied 5 NY3d 704 [2005]).Present—Gorski, J.P., Martoche, Smith, Centra and Green, JJ.