| McFadden v Oneida, Ltd. |
| 2012 NY Slip Op 02208 [93 AD3d 1309] |
| March 23, 2012 |
| Appellate Division, Fourth Department |
| Pamela McFadden et al., Appellants, v Oneida, Ltd.,Respondent. |
—[*1] Hiscock & Barclay, LLP, Rochester (Robert M. Shaddock of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Ontario County (Craig J. Doran, A.J.), enteredFebruary 15, 2011 in a personal injury action. The order denied plaintiffs' motion for judgmentnotwithstanding the verdict.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs purport to appeal from a decision "dated" February 4, 2011 denyingtheir motion for, inter alia, judgment notwithstanding the verdict. Although no appeal lies from amere decision (see Kuhn v Kuhn, 129 AD2d 967 [1987]), we nevertheless note that theorder was "entered" February 4, 2011, and we exercise our discretion to treat the notice of appealas valid and deem the appeal taken from the order (see generally CPLR 5520 [c]).Plaintiffs were injured when a shelving unit that they were disassembling in defendant's storecollapsed. Plaintiffs had purchased six shelving units from defendant's store when it was goingout of business. The units were purchased "as is." The day after the accident, plaintiff WilliamCurran called the store manager on two occasions and left messages, but he never received areturn telephone call. Inasmuch as the shelving units were no longer available and Curran did notknow who manufactured them, he visited another one of defendant's stores and observed nearlyidentical shelving units, which he photographed. Curran also purchased additional shelving unitsfrom the company that he believed to be the manufacturer of the shelving units in defendant'sstore and, when he assembled those units, he observed that "everything was the same" as theunits that collapsed.
At trial, Supreme Court permitted plaintiffs to assemble a unit that Curran had purchasedfrom the manufacturer and present it to the jury as a demonstrative exhibit. The parties presentedthe testimony of experts supporting competing theories of the way in which the accidentoccurred. The jury answered the first question on the verdict sheet, "Was [defendant's] premisesreasonably safe?" in the affirmative, and thus the court entered judgment in favor of defendant.Plaintiffs moved for, inter alia, judgment notwithstanding the verdict on the grounds that thejurors misapprehended the first question on the verdict sheet and that at least two jurors [*2]expressed confusion after the verdict regarding that question. Thecourt denied the motion.
Plaintiffs' contention with respect to the jury charge is not preserved for our review becausethey failed to object when the court discussed PJI 2:90 prior to charging the jury or at any othertime before the jury began deliberations (see CPLR 4110-b; Garris v K-Mart, Inc., 37 AD3d1065, 1066 [2007]). Plaintiffs also failed to preserve for our review their further contentionwith respect to the verdict sheet because, although plaintiffs requested that the court use differentlanguage for the first question on the verdict sheet, they did not object to the proposed languageon the ground they now raise on appeal (see Schmidt v Buffalo Gen. Hosp., 278 AD2d827, 828 [2000], lv denied 96 NY2d 710 [2001]; see generally CPLR 5501 [a][3]). In any event, plaintiffs failed to demonstrate any prejudice arising from the allegedinadequacies of the jury charge (see Blanchard v Whitlark, 286 AD2d 925, 926 [2001]),nor did plaintiffs establish that "there was 'substantial confusion among the jurors' " based on thelanguage in the verdict sheet (Lopez v Kenmore-Tonawanda School Dist., 275 AD2d894, 896 [2000]).
Plaintiffs contend that the court erred in denying their pretrial cross motion seeking sanctionsfor defendant's spoliation of evidence, i.e., disposing of the shelving units that collapsed beforethey could be examined or photographed. Plaintiffs requested that the court either strike theanswer or strike the affirmative defense of comparative negligence. The court's determinationdenying the cross motion is not properly before us because the appeal is taken from an orderdenying plaintiffs' post-trial motion, rather than the judgment (see generally Fleiss v SouthBuffalo Ry. Co., 280 AD2d 1004, 1005 [2001]). In any event, trial courts have "broaddiscretion in determining what, if any, sanction[s] should be imposed for spoliation of evidence"(Iannucci v Rose, 8 AD3d 437[2004]), and "the sanction of striking a pleading . . . 'should be granted only whereit is conclusively shown that the discovery default was deliberate or contumacious' " (Wetzler v Sisters of Charity Hosp., 17AD3d 1088, 1089 [2005], amended on rearg 20 AD3d 944 [2005]). Here, plaintiffswere not precluded from establishing a prima facie case of negligence, and thus the remedy ofstriking the answer or an affirmative defense was not an appropriate sanction (see id. at1090).
Contrary to plaintiffs' further contention, we conclude that the verdict is supported by legallysufficient evidence inasmuch as "there is a valid line of reasoning and permissible inferences thatcould lead rational persons to the conclusion reached by the jury based upon the evidencepresented at trial" (Guthrie vOvermyer, 19 AD3d 1169, 1170 [2005]; see generally Cohen v Hallmark Cards,45 NY2d 493, 499 [1978]). Finally, we conclude that the verdict is not against the weight of theevidence (see Wesolek v Tops Mkts., 255 AD2d 972, 973 [1998]; see generally Lolikv Big V Supermarkets, 86 NY2d 744, 746 [1995]). Present—Centra, J.P., Carni,Lindley, Sconiers and Martoche, JJ.