| Delaney v Delaney |
| 2011 NY Slip Op 02834 [83 AD3d 647] |
| April 5, 2011 |
| Appellate Division, Second Department |
| Maureen J. Delaney, Respondent, v Matthew P. Delaney,Appellant. |
—[*1]
In an action, inter alia, to recover damages for breach of contract, the defendant appeals froma judgment of the Supreme Court, Nassau County (Mahon, J.), dated October 26, 2009, which,upon the denial of that branch of his motion pursuant to CPLR 4401, made at the close of theplaintiff's case, which was for judgment as a matter of law dismissing the cause of action torecover damages for breach of contract, upon the denial of his renewed motion pursuant to CPLR4401, made at the close of evidence, for judgment as a matter of law dismissing the cause ofaction to recover damages for breach of contract, upon a jury verdict in favor of the plaintiff andagainst him in the principal sum of $129,087.74, and upon the denial of his motion, in effect,pursuant to CPLR 4404 (a) to set aside the jury verdict on the issue of liability as unsupported bylegally sufficient evidence and for judgment as a matter of law or to set aside the verdict ascontrary to the weight of the evidence and for a new trial, is in favor of the plaintiff and againsthim in the principal sum of $129,087.74.
Ordered that the judgment is affirmed, with costs.
"To be entitled to judgment as a matter of law pursuant to CPLR 4401, a defendant has theburden of showing that there is no rational process by which the jury could find in favor of theplaintiff and against the moving defendant" (Velez v Goldenberg, 29 AD3d 780, 781 [2006]; see Wehr v Long Is. R.R. Co., 38AD3d 880, 880-881 [2007]). "In considering the motion for judgment as a matter of law, thetrial court must afford the party opposing the motion every inference which may properly bedrawn from the facts presented, and the facts must be considered in a light most favorable to thenonmovant" (Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]; see Centennial Contrs. Enters. v East N.Y.Renovation Corp., 79 AD3d 690 [2010]).
Viewing the evidence in the light most favorable to the plaintiff, as we must (seeCampbell v City of Elmira, 84 NY2d 505, 509 [1994]; Alexander v Eldred, 63 NY2d460, 464 [1984]; Tribuzio v City of NewYork, 15 AD3d 646, 647 [2005]), we find that a valid line of reasoning and permissibleinferences could lead a rational person to the conclusion reached by the jury here. Contrary to thedefendant's contention, he failed to demonstrate that he was entitled to judgment as a matter oflaw based on his affirmative defense of the statute of frauds (see General ObligationsLaw § 5-[*2]701 [a] [1]). The evidence was insufficient toestablish that the alleged agreement "[b]y its terms [was] not to be performed within one yearfrom the making thereof" (General Obligations Law § 5-701 [a] [1]; see North ShoreBottling Co. v Schmidt & Sons, 22 NY2d 171, 175 [1968]; Micena v Katz, 68 AD3d 826, 827[2009]; cf. Pritsker v Soyferman, 275 AD2d 738, 738-739 [2000]; A. AversaBrokerage v Honig Ins. Agency, 249 AD2d 345, 346 [1998]). Accordingly, the trial courtproperly denied the defendant's motions for judgment as a matter of law pursuant to CPLR 4401.
Furthermore, under the circumstances of this case and according deference to the jury's"opportunity to see and hear the witnesses" (Exarhouleas v Green 317 Madison, LLC, 46 AD3d 854, 855[2007]; see Bertelle v New York CityTr. Auth., 19 AD3d 343 [2005]), we conclude that the verdict was based upon a fairinterpretation of the evidence presented (see Lolik v Big V Supermarkets, 86 NY2d 744,745-746 [1995]; Nicastro v Park, 113 AD2d 129, 132 [1985]). Accordingly, the SupremeCourt properly denied the defendant's motion which was, in effect, pursuant to CPLR 4404 (a) toset aside the jury verdict on the issue of liability as unsupported by legally sufficient evidenceand for judgment as a matter of law or to set aside the verdict as contrary to the weight of theevidence and for a new trial. Angiolillo, J.P., Florio, Belen and Miller, JJ., concur.