| Heilbrunn v Town of Woodstock |
| 2008 NY Slip Op 03377 [50 AD3d 1377] |
| April 17, 2008 |
| Appellate Division, Third Department |
| Toby L. Heilbrunn, Appellant, v Town of Woodstock,Respondent. |
—[*1] Monte J. Rosenstein, Middletown, for respondent.
Kavanagh, J. Appeals (1) from an order of the Supreme Court (Ceresia, Jr., J.), enteredFebruary 27, 2007 in Ulster County, which denied plaintiff's motion to set aside the verdict, and(2) from a judgment of said court, entered March 1, 2007 in Ulster County, upon a verdictrendered in favor of defendant.
On September 20, 2003, plaintiff attended a film festival at a community center in the Townof Woodstock, Ulster County, which is owned by defendant. While waiting to enter thecommunity center, plaintiff and others were standing on a handicap-accessible ramp and leaningon a wooden railing when the railing broke causing plaintiff to fall to the ground. Plaintiffcommenced this action alleging that defendant was negligent by allowing a dangerous anddefective condition to exist on the premises which caused her injury. After trial, the jury rendereda verdict in effect finding that defendant was not negligent. Supreme Court (Ceresia, Jr., J.)denied plaintiff's subsequent motion to set aside the verdict as against the weight of theevidence.[FN1] Plaintiff now appeals and we affirm.[FN2][*2]
"Giving great deference to a jury's interpretation ofevidence, the standard is whether the evidence so preponderates in favor of plaintiff that no fairinterpretation of the evidence could lead to the result reached by the jury" (Braco v OCB Rest. Co., 5 AD3d920, 921 [2004] [citations omitted]; see Lolik v Big V Supermarkets, 86 NY2d 744,746 [1995]). Here, we cannot conclude that the verdict was against the weight of the credible evidence. On these facts, to establish that defendantwas legally responsible for this accident, plaintiff was required to prove that defendant had actualor constructive notice of the alleged defect that caused plaintiff's accident (see Alig v Parkway Parking of N.Y.,Inc., 36 AD3d 980, 980 [2007]; Mokszki v Pratt, 13 AD3d 709, 710 [2004]). Because there was noevidence that defendant had actual notice of the alleged defective condition, plaintiff, to recover,had to establish by a preponderance of the credible evidence that "the condition was visible andapparent and existed for a sufficient period of time prior to the accident to permit defendant[ ] todiscover it and take corrective action" (Boyko v Limowski, 223 AD2d 962, 964 [1996];see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]).
Here, plaintiff contends that the testimony of its expert—Conrad Hoffman, aprofessional engineer and land surveyor—established that the railing failed because itcontained dry rot that had to have been present for such a prolonged period of time prior toplaintiff's accident that defendant had to have constructive notice of it, and that, as a result, thejury's finding that defendant was not negligent did not represent a reasonable interpretation of theevidence. However, while Hoffman testified that the bolt connection in the railing failed becauseof dry rot, he acknowledged that his initial finding was not based on an actual inspection of thewood railing involved in the accident but, rather, on two photographs provided to him byplaintiff's counsel. Moreover, he did not actually inspect the railing until two years after theaccident and could not attest to where it had been stored from the time of the accident to the dateof his inspection or whether the manner in which the wood had been stored had any effect on itspresent condition. He also testified that he did not know at the time he prepared his report thatplaintiff and two other people were leaning on the railing at the time of plaintiff's accident.
Defendant produced testimony through its building maintenance supervisor that, on the dateof plaintiff's accident, he had been in charge of the maintenance of the area in and around thecommunity center, it was inspected daily and it had been found to be consistently in goodcondition. He noted that the building and the handicap-accessible ramp and its railings areroutinely subjected to numerous inspections not only by town officials, but also byrepresentatives of agencies that utilize the facility, including the Ulster County Department ofHealth. In each instance, the building, the handicap-accessible ramp and its railings were found[*3]to be in good condition. Of note, each of plaintiff's witnesses,including plaintiff, testified to using the facility on numerous occasions prior to the accident andnone recalled ever seeing anything that would have suggested that the ramp or its railing was inany way defective and not in excellent condition. Given the absence of such evidence, coupledwith the proof presented by defendant, we find that there was ample evidence to support thejury's conclusion that defendant was not negligent (see Perry v Wine & Roses, Inc., 40 AD3d 1299, 1300 [2007];Tel Oil Co. v City of Schenectady, 303 AD2d 868, 872 [2003]).
Nor do we agree that Supreme Court (Bradley, J.) erred by denying plaintiff's request topreclude defendant from using a transcript at trial of plaintiff's testimony taken during a GeneralMunicipal Law § 50-h hearing. Plaintiff alleged that defendant failed to comply withCPLR 3116 (a) because it failed to send her a copy of the stenographic transcript of the testimonythat she gave at the hearing so that she could review it and certify it as correct prior to trial. Inmaking this claim, plaintiff does not dispute defendant's contention that, in fact, plaintiff'scounsel had a copy of this transcript at least six months prior to trial and, during that time, neverraised an objection to the transcript's contents or complained of not receiving it (seeGeneral Municipal Law § 50-h [3] [transcript shall be furnished to the plaintiff or attorney"upon request"]).
Similarly unavailing is plaintiff's challenge to Supreme Court's jury instructions regardingnegligence of a property owner. Contrary to plaintiff's assertion, Supreme Court properlyinstructed the jury regarding actual and constructive notice and the court's instructions accuratelyreflect the appropriate charge (see PJI 2:91).
Finally, we do not agree that Supreme Court's conduct deprived plaintiff of a fair trial.Plaintiff complains that the court improperly participated in examining witnesses, questioned inopen court before the jury the qualifications of one of plaintiff's experts and repeatedly sustainedunmade objections during plaintiff's examination of witnesses. Initially, it must be noted thatplaintiff failed to properly take exception to the court's conduct and, therefore, failed toadequately preserve this issue for this Court's review (see American Prop. Consultants vZamias Servs., 294 AD2d 217, 217 [2002], lv denied 99 NY2d 504 [2003];Camperlengo v Lenox Hill Hosp., 239 AD2d 150, 150 [1997]). While the court wasundoubtedly actively engaged in all aspects of the trial proceedings, its conduct was notunreasonable nor was it to such a degree as to impart a bias that influenced the jury (compareTaromina v Presbyterian Hosp. in City of N.Y., 242 AD2d 505, 506 [1997]). In fact, themajority of the instances cited by plaintiff when viewed in their proper context reveal nothingmore than an evenhanded attempt "towards focusing the proceedings on the relevant issues andclarifying facts material to the case in order to expedite the trial" (Sheinkerman v 3111 OceanParkway Assoc., 259 AD2d 480, 480 [1999], lv dismissed and denied 93 NY2d 956[1999]). For example, plaintiff specifically claims that the court improperly instructed the jurythat there was no testimony positively identifying the wood presented at trial as that which hadbeen recovered from the scene on the day after the accident. While plaintiff complains that thisstatement was both inaccurate and misleading, no objection was ever made to it, nor did plaintiffever request that a clarification be issued (see American Prop. Consultants v ZamiasServs., 294 AD2d at 217). Moreover, a careful reading of the witness's testimony[FN3] suggests that the statement to the jury was not inaccurate. Under the [*4]circumstances, we do not agree that the court's conduct was eitherimproper or prejudicial or that it had an inappropriate impact on the jury's evaluation of theevidence introduced at trial.
Mercure, J.P., Spain, Rose and Lahtinen, JJ., concur. Ordered that the order and judgment areaffirmed, without costs.
Footnote 1: The trial was held before JusticeBradley. As a result of Justice Bradley's untimely death in November 2006, however, plaintiff'smotion was—by consent of the parties—decided by Justice Ceresia and, thereafter, ajudgment in defendant's favor was entered.
Footnote 2: To the extent that plaintiff'snotice of appeal states that she is appealing from the August 30, 2006 verdict, we note that anappeal cannot lie from a verdict (see CPLR 5512 [a]). However, in the interest of justice,we deem this appeal as having been taken from the judgment entered on the verdict (seeCPLR 5520 [c]; Soto v Montanez, 201 AD2d 876, 876 [1994]).
Footnote 3: The witness was asked, "Do youknow if it's the exact wood?" and the witness answered, "It appears to be very similar, if not thesame, to the wood in the photo and also a photo I have in my archives."