| Keyser v KB Toys, Inc. |
| 2011 NY Slip Op 01621 [82 AD3d 713] |
| March 1, 2011 |
| Appellate Division, Second Department |
| Joy Adrienne Keyser et al., Respondents, v KB Toys, Inc.,et al., Appellants. |
—[*1] Devitt Spellman Barrett, LLP, Smithtown, N.Y. (Diane K. Farrell and Salenger, Sack,Kimmel & Bavaro, LLP [Gregory S. Gennarelli], of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendants appeal from anorder of the Supreme Court, Suffolk County (Mayer, J.), dated May 7, 2010, which granted thatbranch of the plaintiffs' motion which was pursuant to CPLR 4404 (a) to set aside a jury verdictin favor of them on the issue of liability as contrary to the weight of the evidence, and for a newtrial.
Ordered that the order is reversed, on the law and the facts, with costs, that branch of theplaintiffs' motion which was pursuant to CPLR 4404 (a) to set aside the jury verdict as contraryto the weight of the evidence and for a new trial is denied, the jury verdict is reinstated, and thematter is remitted to the Supreme Court, Suffolk County, for the entry of an appropriatejudgment.
The plaintiff Joy Adrienne Keyser allegedly was injured when boxes fell on her from anoverstock shelf in a KB Toys store. The jury was instructed, inter alia, on the theory of res ipsaloquitur, and returned a verdict in favor of the defendants.
The doctrine of res ipsa loquitur permits an inference of negligence to be drawn solely fromthe happening of the accident upon the plaintiff's showing that the event is of the kind whichordinarily does not occur in the absence of negligence and was caused by an agency orinstrumentality within the exclusive control of the defendant without any voluntary action orcontribution on the part of the plaintiff (see Dermatossian v New York City Tr. Auth., 67NY2d 219, 226 [1986]). "The rule has the effect of creating a prima facie case of negligencesufficient for submission to the jury, and the jury may—but is not required to—drawthe permissible inference" (id. at 226; see Ebanks v New York City Tr. Auth., 70NY2d 621, 623 [1987]; Crockett vMid-City Mgt. Corp., 27 AD3d 611, 612 [2006]). "[T]he use of res ipsa loquitur doesnot relieve the plaintiff of the burden of proof" (Crockett v Mid-City Mgt. Corp., 27AD3d at 612). "The jury has great latitude in a case involving res ipsa loquitur and '[e]ven wheredefendant offers no proof, it is still for the jury to decide, on plaintiff's proof, whether liabilityhas been established' " (id. [citation omitted]).
In considering that branch of the plaintiffs' motion which was to set aside the verdict [*2]as contrary to the weight of the evidence, the standard to be appliedwas whether the evidence so preponderated in favor of the plaintiffs that the verdict could nothave been reached on any fair interpretation of the evidence (see Lolik v Big VSupermarkets, 86 NY2d 744, 746 [1995]; Nicastro v Park, 113 AD2d 129, 134[1985]). In making this determination, the Court must proceed with considerable caution, "for inthe absence of indications that substantial justice has not been done, a successful litigant isentitled to the benefits of a favorable jury verdict" (Nicastro v Park, 113 AD2d at 133).
A review of the evidence in this case demonstrates that a fair interpretation of the evidencesupported the verdict in favor of the defendants and, therefore, the Supreme Court erred ingranting that branch of the plaintiffs' motion which was pursuant to CPLR 4404 (a) to set asidethe verdict as contrary to the weight of the evidence and for a new trial (see McCrorie vPergament Home Ctrs., 230 AD2d 776 [1996]; cf. Fields v King Kullen Grocery Co., 28 AD3d 513, 513 [2006];Cubeta v York Intl. Corp., 30 AD3d557, 558-559 [2006]; see also Ruggiero v Waldbaums Supermarkets, 242 AD2d268, 269 [1997]). Angiolillo, J.P., Florio, Belen and Austin, JJ., concur. [Prior Case History:26 Misc 3d 1240(A), 2010 NY Slip Op 50486(U).]