Danieu v 109 S. Union St., LLC

2008 NY Slip Op 09232 [56 AD3d 1292]

November 21, 2008

Appellate Division, Fourth Department

As corrected through Wednesday, January 7, 2009

Patrick Danieu et al., Appellants, v 109 South Union St.,LLC, et al., Respondents. (Appeal No. 1.)

—[*1]The Carey Firm, LLC, Buffalo (Shawn W. Carey of counsel), for plaintiffs-appellants.

Augello & Matteliano, LLP, Buffalo (Joseph A. Matteliano of counsel), fordefendants-respondents.

Appeal from a judgment of the Supreme Court, Erie County (Paula L. Feroleto, J.), enteredAugust 17, 2007 in a personal injury action. The judgment, among other things, dismissed theamended complaint following a jury trial.

It is hereby ordered that the judgment so appealed from is unanimously affirmed withoutcosts.

Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained byPatrick Danieu (plaintiff) when he fell on stairs after the handrailing came loose from the wall ina building owned by defendant 109 South Union St., LLC and managed by defendant FlaumManagement Company, Inc. Contrary to plaintiffs' contention, Supreme Court properly refused toinstruct the jury that, if it found that defendants created an unsafe condition, then it may also findthat defendants were negligent. That theory was not supported by the evidence, and thus the courtproperly determined that such an instruction was inappropriate (see generally Deshommes vHussain, 47 AD3d 869 [2008]; Sangiovanni v Koloski, 31 AD3d 422, 422-423[2006]; D'Alessandro v Eastman Kodak Co., 24 AD3d 1227, 1228 [2005], lv denied6 NY3d 712 [2006]). The individual responsible for building maintenance testified fordefendants that he did not make any repairs to the handrails in any stairway prior to plaintiff'sfall, and that testimony was uncontroverted by plaintiffs. Contrary to plaintiffs' furthercontention, because there is no evidence " 'that substantial justice has not been done' "(Stevens v Atwal [appeal No. 2], 30 AD3d 993, 994 [2006]), the court also properlydenied plaintiff's post-trial motion to set aside the verdict and for a new trial in the interest ofjustice. Present—Scudder, P.J., Martoche, Centra, Lunn and Gorski, JJ.