| Christ v Law Offs. of William F. Levine & Michael B.Grossman |
| 2010 NY Slip Op 03056 [72 AD3d 721] |
| April 13, 2010 |
| Appellate Division, Second Department |
| George Christ et al., Appellants-Respondents, v LawOffices of William F. Levine & Michael B. Grossman et al.,Respondents-Appellants. |
—[*1] Vincent D. McNamara, East Norwich, N.Y. (Anthony Marino of counsel), forrespondents-appellants.
In an action to recover damages for legal malpractice, the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Nassau County (LaMarca, J.),entered November 24, 2008, as granted that branch of the defendants' motion which waspursuant to CPLR 4404 (a) to set aside a jury verdict in favor of the plaintiffs as contrary to theweight of the evidence and for a new trial, and the defendants cross-appeal, as limited by theirbrief, from so much of the same order as denied that branch of their motion which was pursuantto CPLR 4404 (a) for judgment as a matter of law.
Ordered that the order is reversed insofar as appealed from, on the facts, and that branch ofthe defendants' motion which was pursuant to CPLR 4404 (a) to set aside the jury verdict ascontrary to the weight of the evidence and for a new trial is denied; and it is further,
Ordered that the order is affirmed insofar as cross-appealed from, and it is further,
Ordered that the matter is remitted to the Supreme Court, Nassau County, for furtherproceedings; and it is further,
Ordered that one bill of costs is awarded to the plaintiffs.
The plaintiffs retained attorney Harold Solomon to prosecute a property damage claimagainst the Village of Garden City arising from a sewer backup at their house. Solomon failed totimely commence a negligence action against the Village based on that claim. Thereafter, theplaintiffs hired the defendants in this action to represent them in a legal malpractice actionagainst Solomon, which the defendants commenced. In an order dated April 18, 2002, theSupreme Court (Franco, J.), granted Solomon's motion for summary judgment dismissing thecomplaint in that legal malpractice action. The Supreme Court found that the plaintiffs failed toraise any triable issues of fact as to the Village's negligence, as there was no evidence showingthat the sewer backup was a recurring condition or that the Village had notice of the defectwhich caused the sewer backup. The plaintiffs subsequently discovered documents whichallegedly demonstrated a history of sewer [*2]backups in thevicinity of their home. They also discovered that both Solomon and the defendants had madeFreedom of Information Law requests (see Public Officers Law article 6) for thosedocuments, but had failed to follow up when the Village did not respond to those requests. Theplaintiffs then commenced this action, alleging the defendants committed legal malpractice byfailing to obtain the documents relating to recurring sewer backups in their neighborhood prior tothe dismissal of their action against Solomon.
To prevail in their action alleging legal malpractice, the plaintiffs were required to provethat, but for defendants' negligence, they would have obtained a favorable result in a negligenceaction against the Village and in their suit against Solomon (see Edelweiss [USA] Inc. v Vengroff Williams & Assoc., Inc., 27AD3d 688, 690, and cases cited therein [2006]). A trial was held in the instant case on theissue of the merits of the underlying claim and the jury returned a verdict in favor of theplaintiffs. The defendants moved pursuant to CPLR 4404 (a) to set aside the jury verdict and forjudgment as a matter of law, or to set aside the jury verdict as contrary to the weight of theevidence and for a new trial. The Supreme Court granted that branch of the defendants' motionwhich was to set aside the jury verdict as contrary to the weight of the evidence on the issue ofthe Village's negligence, and directed a new trial on that issue. The plaintiffs appeal. Thedefendants cross-appeal, arguing that the Supreme Court should have entered judgment in theirfavor as a matter of law. The Supreme Court should have denied the defendants' motion in itsentirety.
To be awarded judgment as a matter of law pursuant to CPLR 4404 (a), a defendant has theburden of establishing that there is no rational process by which the jury could find for theplaintiff against the moving defendant (see Broadie v St. Francis Hosp., 25 AD3d 745, 746 [2006]; Wong v Tang, 2 AD3d 840[2003]; Biggs v Mary Immaculate Hosp., 303 AD2d 702, 703 [2003]). The plaintiff'sevidence must be accepted as true, and the plaintiff is entitled to every favorable inference whichcan reasonably be drawn from the evidence (see Broadie v St. Francis Hosp., 25 AD3d at746). Here, the defendants failed to meet their burden. Notably, the plaintiffs' expert, LouisSchwartz, testified that, after examining reports of sewage stoppages in the vicinity of theplaintiffs' home, he concluded that the Village had failed to properly maintain its sewers.
A jury verdict should not be set aside as contrary to the weight of the evidence unless thejury could not have reached its verdict by any fair interpretation of the evidence (see Lolik vBig V Supermarkets, 86 NY2d 744 [1995]; Nicastro v Park, 113 AD2d 129, 134[1985]). Whether a jury verdict should be set aside as contrary to the weight of the evidence doesnot involve a question of law, but rather, requires a discretionary balancing of many factors(see Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). It is for the trier of fact tomake determinations as to the credibility of the witnesses, and great deference is accorded to thefactfinders, who had the opportunity to see and hear the witnesses (see Bertelle v New York City Tr.Auth., 19 AD3d 343 [2005]). Under the circumstances, the jury's determination that theVillage was negligent in maintaining its sewer system was supported by a fair interpretation ofthe evidence.
The defendants' remaining contentions are without merit. Dillon, J.P., Florio, Miller andAustin, JJ., concur. [Prior Case History: 21 Misc 3d 1143(A), 2008 NY Slip Op52488(U).]