| Cook v Oswego County |
| 2011 NY Slip Op 09733 [90 AD3d 1674] |
| December 30, 2011 |
| Appellate Division, Fourth Department |
| Wendy A. Cook, Appellant, v Oswego County,Respondent, et al., Defendants. (Appeal No. 1.) |
—[*1] Petrone & Petrone, P.C., Utica (David Block of counsel), for defendant-respondent.
Appeal from a judgment of the Supreme Court, Oswego County (Norman W. Seiter, Jr., J.),entered September 24, 2009 in a personal injury action. The judgment dismissed the complaintagainst defendant Oswego County upon a verdict of no cause for action.
It is hereby ordered that the judgment so appealed from is unanimously affirmed withoutcosts.
Memorandum: Plaintiff commenced this action seeking damages for injuries she sustainedwhen a vehicle driven by defendant Steven E. Gleason, Sr. struck her while it was backing into awaste management facility owned and operated by defendant Oswego County (County).Following a trial, the jury returned a verdict of no cause for action. On appeal, plaintiff contendsthat Supreme Court erred in denying her motion to set aside the verdict as against the weight ofthe evidence, for judgment determining that Gleason was negligent as a matter of law and for anew trial pursuant to CPLR 4404 (a) on the remaining issues or, in the alternative, a new trial onall issues.
Contrary to plaintiff's contention, the verdict in favor of Gleason is not against the weight ofthe evidence. "A motion to set aside a jury verdict of no cause [for] action should not be grantedunless the preponderance of the evidence in favor of the moving party is so great that the verdictcould not have been reached upon any fair interpretation of the evidence" (Dannick v Countyof Onondaga, 191 AD2d 963, 964 [1993]). Here, the jury was entitled to credit Gleason'stestimony that he was backing up very slowly and using his mirrors appropriately in order to seewhat was behind him. The mere fact that Gleason was backing up when he struck plaintiff anddid not look over his shoulder does not necessitate the conclusion that he was negligent as amatter of law. Rather, viewing the record as a whole, we conclude that "the verdict is one thatreasonable persons could have rendered," and we will not substitute our judgment for that of thejury (Ruddock v Happell, 307 AD2d 719, 720 [2003]).
We also reject plaintiff's contention that the court committed reversible error by allowing[*2]a State Trooper who investigated the incident to testify thatplaintiff's version of events was inconsistent with his own investigation. As plaintiff correctlycontends, the State Trooper's investigation was based in part on hearsay statements of witnesseswho did not testify at trial, and we thus conclude that the court properly ruled that the Trooper'sconclusions from the report were inadmissible when Gleason attempted to offer them during hisdirect examination of the Trooper at trial (see Conners v Duck's Cesspool Serv., 144AD2d 329, 329-330 [1988]). The Trooper thereafter testified that he changed his report atplaintiff's request by adding an addendum to reflect plaintiff's version of the manner in which theaccident occurred. The Trooper was then allowed, over plaintiff's objection, to testify thatplaintiff's version of events were not consistent with his own findings as to the manner in whichthe accident occurred. Even assuming, arguendo, that the court erred in admitting that testimonyof the Trooper, we conclude that the error "would not have affected the result" and that any sucherror therefore is harmless (Palmer v Wright & Kremers, 62 AD2d 1170, 1170 [1978]).
Finally, we reject plaintiff's contention that the court erred in limiting her theories of liabilityagainst the County by instructing the jury that it could find the County liable only if the Countyfailed to ensure, pursuant to its internal rules, that Gleason stopped at the transfer bay entranceand only if that failure proximately caused the accident. Upon our review of the record, weconclude that the court's charge was consistent with the only viable theory of negligence assertedat trial against the County, and thus that the court did not limit plaintiff's theories of liabilityagainst the County. Under the circumstances, the court's charge "appropriately conveyed theapplicable legal principles and applied them to the facts adduced in view of the issues raised" attrial (Espriel v New York Downtown Hosp., 298 AD2d 165, 166 [2002]).Present—Scudder, P.J., Centra, Carni, Lindley and Martoche, JJ.