| Krieger v McDonald's Rest. of N.Y., Inc. |
| 2010 NY Slip Op 09837 [79 AD3d 1827] |
| December 30, 2010 |
| Appellate Division, Fourth Department |
| Doris Krieger et al., Appellants, v McDonald's Restaurant of NewYork, Inc., et al., Respondents. (Appeal No. 1.) |
—[*1] Burke, Scolamiero, Mortati & Hurd, LLP, Hudson (John D. Holt of counsel), fordefendants-respondents.
Appeal from an order of the Supreme Court, Monroe County (Ann Marie Taddeo, J.),entered May 26, 2009 in a personal injury action. The order, among other things, deniedplaintiffs' motion for judgment notwithstanding the verdict.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: The plaintiffs in appeal No. 1 commenced an action seeking damages forinjuries sustained by plaintiff Doris Krieger when she slipped and fell on ice on a sidewalkmaintained by defendants. The plaintiff in appeal No. 2 commenced a separate action seekingdamages for injuries he sustained when, shortly after plaintiff Doris Krieger's accident, he slippedand fell on ice in a different area of the same sidewalk. The two actions were consolidated fortrial on the issue of liability, and the jury found that defendants were not negligent.
In these consolidated appeals, the plaintiffs in each appeal (collectively, plaintiffs) contendthat Supreme Court erred in denying their post-trial motion seeking, inter alia, to set aside theverdict as against the weight of the evidence and for a new trial. We reject that contention. Wenote at the outset that, to the extent that plaintiffs further contend that the verdict should be setaside as inconsistent, they failed to preserve that contention for our review inasmuch as they"failed to object to the verdict on that ground before the jury was discharged" (Potter v Jay E. Potter Lbr. Co., Inc., 71AD3d 1565, 1567 [2010]; seeKunsman v Baroody, 60 AD3d 1369, 1370 [2009]).[*2]
" 'A verdict rendered in favor of a defendant may besuccessfully challenged as against the weight of the evidence only when the evidence sopreponderated in favor of the plaintiff that it could not have been reached on any fairinterpretation of the evidence' " (Lifson v City of Syracuse [appeal No. 2], 72 AD3d1523, 1524 [2010]; see Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]), and thatcannot be said here. According to plaintiffs' expert meteorologist, a storm deposited significantamounts of freezing rain in the early morning on the day of the accidents. He testified that, atapproximately 10:00 a.m., the freezing rain changed to "plain rain," which in turn changed todrizzle in the early afternoon. By 4:00 p.m., there was "very light freezing drizzle," with "a littlesnow mixed in toward the end of the day." Thus, plaintiffs' expert concluded that, although thewinter storm ceased by midday, the later meteorological conditions that included the lightfreezing drizzle as well as a drop in temperature could have created slippery conditions shortlybefore the accidents. Nevertheless, plaintiffs' expert did not testify concerning the timing of theformation of the icy areas that caused the accidents (see Robinson v Albany Hous. Auth.,301 AD2d 997, 998 [2003]; cf. Bullardv Pfohl's Tavern, Inc., 11 AD3d 1026 [2004]). We thus conclude that a fairinterpretation of the evidence supports the jury's verdict, i.e., that the specific icy areas at issue"formed so close in time to the accident[s] that [defendants] could not reasonably have beenexpected to notice and remedy [them]" (Piersielak v Amyell Dev. Corp., 57 AD3d 1422, 1423 [2008][internal quotation marks omitted]; seeWilkowski v Big Lots Stores, Inc., 67 AD3d 1414, 1415 [2009]). Although a shiftmanager for defendants testified that he observed ice in one or two areas of the sidewalk andelsewhere at or around 2:00 p.m., those icy areas were near a different building entrance. It iswell established that "[g]eneral awareness that snow or ice may be present is legally insufficientto constitute notice of the particular condition that caused" a plaintiff to fall (Kaplan v DePetro, 51 AD3d 730,731 [2008]; see Boucher v WatervlietShores Assoc., 24 AD3d 855, 857 [2005]; Stoddard v G.E. Plastics Corp., 11 AD3d 862, 863 [2004]). For thesame reasons, we conclude that the court also properly denied plaintiffs' post-trial motion to theextent that it sought judgment notwithstanding the verdict (see generally Adamy vZiriakus, 92 NY2d 396, 400 [1998]; Kunsman, 60 AD3d at 1369-1370).
Finally, plaintiffs' contention that the jury was confused with respect to the concept ofnegligence based on the court's failure to re-read a portion of the charge with respect thereto isunpreserved for our review (see Delong v County of Chautauqua [appeal No. 2], 71AD3d 1580, 1580-1581 [2010]; Garris vK-Mart, Inc., 37 AD3d 1065 [2007]). We note in any event that, contrary to plaintiffs'contention, the court's charge "accurately stated the law as it applie[d] to the facts in this case anddid not prevent the jury from considering the issues before it" (Dietz v Compass Prop. Mgt. Corp., 49AD3d 1152, 1153 [2008] [internal quotation marks omitted]; see Schmidt v Buffalo Gen.Hosp., 278 AD2d 827 [2000], lv denied 96 NY2d 710 [2001]).Present—Martoche, J.P., Fahey, Carni, Lindley and Sconiers, JJ.