| Viele v Vyverberg |
| 2011 NY Slip Op 02576 [83 AD3d 1428] |
| April 1, 2011 |
| Appellate Division, Fourth Department |
| Nickolas Viele, Respondent, v Lorraine Vyverberg,Appellant. |
—[*1] Cellino & Barnes, P.C., Buffalo (Ellen B. Sturm of counsel), forplaintiff-respondent.
Appeal from a judgment of the Supreme Court, Monroe County (William P. Polito, J.),entered March 5, 2010 in a personal injury action. The judgment awarded plaintiff the sum of$82,440.62 against defendant.
It is hereby ordered that the judgment so appealed from is unanimously affirmed withoutcosts.
Memorandum: Defendant appeals from a judgment awarding plaintiff approximately$82,000 in this premises liability case, following separate trials on liability and damages. Wereject defendant's contention that reversal is required on the ground that Supreme Court erred inomitting from the verdict sheet in the trial on liability a question whether the premises whereplaintiff was injured were maintained in a reasonably safe condition. "[A]ny alleged error in theverdict sheet does not warrant reversal inasmuch as 'no basis exists to warrant a finding of jurorconfusion or inconsistency in the verdict' " (Maurer v Tops Mkts., LLC [appealNo. 3], 70 AD3d 1504, 1505 [2010]; see Williams v Brosnahan, 295 AD2d 971, 974[2002]; Szeztaye v LaVacca, 179 AD2d 555, 555-556 [1992]). We reject defendant'sfurther contention that the court erred in failing to include in its charge to the jury at the trial onliability the issue whether defendant had actual or constructive notice of the condition that causedplaintiff's injury. Rather, the court properly charged the jury that defendant could be held liableonly if the jury found that she created the dangerous or defective condition. "Althoughlandowners ordinarily must have actual or constructive notice of a defective condition beforethey may be held liable . . . , such notice is not required where the landownercreates the defective condition" (Merlo v Zimmer, 231 AD2d 952, 953 [1996]; seeCook v Rezende, 32 NY2d 596, 599 [1973]), and here, based on the proof at the trial onliability, the issue properly before the jury was whether defendant created the defective condition,not whether she had actual or constructive notice thereof.
Defendant's contention that the court erred in permitting all or at least a portion of thetestimony of plaintiff's liability expert at the trial on liability is likewise without merit. "Thedetermination whether to permit expert testimony is a mixed question of law and fact addressedprimarily to the discretion of the trial court . . . , and the court's determinationshould not be disturbed absent an abuse of discretion" (Curtin v J.B. Hunt Transp., Inc.[appeal No. 2], 79 [*2]AD3d 1608, 1610 [2010] [internalquotation marks omitted]; see Kettles vCity of Rochester, 21 AD3d 1424, 1426 [2005]). Based on this record, it cannot be saidthat the court abused its discretion in permitting plaintiff's liability expert to testify at the trial onliability. We have reviewed defendant's remaining contentions and conclude that they are eitherunpreserved for our review or without merit. Present—Centra, J.P., Peradotto, Lindley,Sconiers and Martoche, JJ.