| Kunsman v Baroody |
| 2009 NY Slip Op 02109 [60 AD3d 1369] |
| March 20, 2009 |
| Appellate Division, Fourth Department |
| Eileen Kunsman, Appellant, v Ronald Baroody, Respondent, et al.,Defendant. |
—[*1] Law Offices of Joseph D. Callery, Syracuse (James C. Brady of counsel), fordefendant-respondent.
Appeal from a judgment of the Supreme Court, Monroe County (Evelyn Frazee, J.), enteredMay 12, 2008 in a personal injury action. The judgment dismissed the complaint againstdefendant Ronald Baroody upon a jury verdict.
It is hereby ordered that the judgment so appealed from is unanimously affirmed withoutcosts.
Memorandum: Plaintiff commenced this action seeking damages for injuries she sustainedwhen she slipped and fell on the ice-covered rear steps of a building owned by Ronald Baroody(defendant). On appeal from the judgment entered on the jury's verdict of no cause of action,plaintiff contends that Supreme Court erred in denying her post-trial motion seeking judgmentnotwithstanding the verdict on the issue of defendant's negligence. We reject that contention.Plaintiff failed to surmount "the lofty hurdle of showing that 'there is simply no valid line ofreasoning and permissible inferences which could possibly lead rational [persons] to theconclusion reached by the jury on the basis of the evidence presented at trial' " (Adamy vZiriakus, 92 NY2d 396, 400 [1998], quoting Cohen v Hallmark Cards, 45 NY2d493, 499 [1978]). The court also properly denied the post-trial motion of plaintiff seeking, in thealternative, to set aside the verdict with respect to defendant's alleged negligence as against theweight of the evidence and for a new trial on that issue. Such relief "should not be granted unlessthe preponderance of the evidence in favor of the moving party is so great that the verdict couldnot have been reached upon any fair interpretation of the evidence" (Dannick v County ofOnondaga, 191 AD2d 963, 964 [1993]), and that is not the case here.
Plaintiff further contends that the jury's verdict was inconsistent insofar as the jury foundthat the absence of a handrail for the walkway and steps where she fell constituted an unsafe anddangerous condition but that defendant was not negligent in failing to provide such a handrail.Plaintiff failed to preserve that contention for our review inasmuch as she failed to raise it beforethe jury was discharged (see Rivera v MTA Long Is. Bus, 45 AD3d 557 [2007]). In anyevent, "[a] contention that a verdict is inconsistent and irreconcilable must be reviewed in thecontext of the court's charge[ ] and[,] where it can be reconciled with a reasonable view of theevidence, the [*2]successful party is entitled to the presumptionthat the jury adopted that view" (id. at 558; see Skowronski v Mordino, 4 AD3d782, 783 [2004]). Here, the jury could have reasonably found, in view of the court's charge, thatthe absence of a handrail constituted an unsafe and dangerous condition but that defendant'sconduct did not demonstrate a lack of reasonable care. Present—Hurlbutt, J.P., Smith,Fahey, Green and Pine, JJ.