| Finnegan v Peter, Sr. & Mary L. Liberatore Family Ltd.Partnership |
| 2011 NY Slip Op 09735 [90 AD3d 1676] |
| December 30, 2011 |
| Appellate Division, Fourth Department |
| Tammy Finnegan, Appellant, v The Peter, Sr. & Mary L. LiberatoreFamily Limited Partnership, et al., Respondents. |
—[*1] Cohen & Lombardo, P.C., Buffalo (James J. Nash of counsel), fordefendants-respondents.
Appeal from an order of the Supreme Court, Erie County (John M. Curran, J.), enteredDecember 10, 2010 in a personal injury action. The order denied the motion of plaintiff forjudgment notwithstanding the verdict.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries she sustainedwhen she fell while exiting her townhouse at defendants' apartment complex. A trial wasconducted, following which the jury found that defendants were negligent in their maintenance ofthe premises but that such negligence was not a substantial factor in bringing about plaintiff'sinjuries.
Contrary to plaintiff's contention, Supreme Court properly denied her motion seekingjudgment notwithstanding the verdict or, in the alternative, to set aside the verdict as inconsistentand therefore against the weight of the evidence, which relief would result in a new trial(see CPLR 4404 [a]). A jury verdict finding that a defendant was negligent but that suchnegligence was not a proximate cause of the plaintiff's injury is not inherently inconsistent(see Waild v Boulos [appeal No. 2], 2 AD3d 1284, 1285 [2003], lv denied 2NY3d 703 [2004]; Rubin v Pecoraro, 141 AD2d 525, 526 [1988]). Rather, it is only"where a jury's findings with regard to negligence and proximate cause are irreconcilablyinconsistent [that] the judgment cannot stand" (Pimpinella v McSwegan, 213 AD2d 232,233 [1995]). Stated differently, findings that a defendant was negligent but that the defendant'snegligence was not a proximate cause of the plaintiff's injuries are irreconcilably inconsistentwhen those issues are "so inextricably interwoven as to make it logically impossible to findnegligence without also finding proximate cause" (Rubin, 141 AD2d at 527; seeJohnson v Schrader [appeal No. 2], 299 AD2d 815, 816 [2002]). Here, defendants presentedevidence [*2]establishing several explanations concerning howthe accident could have occurred, all of which were unrelated to the defect in the sidewalk curbthat allegedly caused plaintiff to fall. We thus conclude that the evidence on the issue ofcausation does not so preponderate in favor of plaintiff that the verdict could not have beenreached on any fair interpretation of the evidence and that the verdict therefore is not against theweight of the evidence (see Villani vBeamer, 11 AD3d 918, 919 [2004]; Skowronski v Mordino, 4 AD3d 782, 782-783 [2004]).
Finally, we reject plaintiff's contention that the court erred in denying her motion in limineseeking to preclude defendants from offering evidence of certain entries in a log book concerningplaintiff's report of her fall and injury. A trial court has broad discretion in supervising thediscovery process, and its determinations will not be disturbed absent an abuse of that discretion(see United Airlines v Ogden N.Y. Servs., 305 AD2d 239, 240 [2003]; see also Davisv Eddy Cohoes Rehabilitation Ctr., 307 AD2d 637 [2003]; CPLR 2004, 3126). Inasmuch asplaintiff was afforded ample opportunity to conduct discovery prior to trial, including beingafforded the opportunity to depose defendants' employee who witnessed her oral report of her fallbefore it was reduced to writing, we cannot agree that the court abused it discretion in denyingher motion in limine. Under the circumstances, we conclude that plaintiff failed to establish insupport of her motion either prejudice or a willful failure to disclose the evidence in question (see Harrington v Palmer Mobile Homes,Inc., 71 AD3d 1274, 1275 [2010]; Mead v Dr. Rajadhyax' Dental Group, 34 AD3d 1139, 1140[2006]). Moreover, we note in any event that defendants did not in fact offer into evidence thelog book page containing plaintiff's report of her fall. Present—Scudder, P.J., Centra,Carni, Lindley and Martoche, JJ.