| Country Park Child Care, Inc. v Smartdesign ArchitecturePLLC |
| 2015 NY Slip Op 05341 [129 AD3d 1636] |
| June 19, 2015 |
| Appellate Division, Fourth Department |
[*1]
| Country Park Child Care, Inc., Appellant, vSmartdesign Architecture PLLC et al., Respondents. |
Phillips Lytle LLP, Buffalo (Alan J. Bozer of counsel), for plaintiff-appellant.
Harter Secrest & Emery LLP, Buffalo (Daniel J. Altieri of counsel), fordefendants-respondents.
Appeal from a judgment of the Supreme Court, Erie County (John A. Michalek, J.),entered January 28, 2014. The judgment dismissed the action upon a verdict of no causeof action.
It is hereby ordered that the judgment so appealed from is unanimously affirmedwithout costs.
Memorandum: Plaintiff commenced this action for professional malpractice againstdefendants, an architecture firm and one of its employees, alleging that they werenegligent in preparing architectural drawings for renovations to plaintiff's daycarefacility. Following a trial, the jury returned a verdict of no cause of action, and SupremeCourt thereafter denied plaintiff's posttrial motion pursuant to CPLR 4404 (a) seeking toset aside the verdict. This appeal ensued, and we affirm.
Contrary to plaintiff's contention, the court properly denied its motion for a directedverdict at the close of proof (see CPLR 4401), and its posttrial motion to set asidethe verdict (see CPLR 4404 [a]). The parties presented sharply conflicting experttestimony concerning whether defendants' actions constituted a deviation from acceptedarchitectural standards of practice (see generally Wilson v Mary Imogene BassettHosp., 307 AD2d 748, 748-749 [2003]). Plaintiff was not entitled to a directedverdict pursuant to CPLR 4401 because, affording defendants every favorable inferenceto be drawn from the evidence, we conclude that there was a rational process by whichthe jury could base a finding in their favor (see Szczerbiak v Pilat, 90 NY2d 553,556 [1997]; Wolfe v St. Clare'sHosp. of Schenectady, 57 AD3d 1124, 1126 [2008]), i.e., that they did notdeviate from accepted architectural standards of practice. We further conclude that thecourt properly refused to set aside the verdict as against the weight of the evidencebecause the evidence did not so greatly preponderate in favor of plaintiff that the verdictcould not have been reached on any fair interpretation of the evidence (see generallyLolik v Big v Supermarkets, 86 NY2d 744, 746 [1995]; Wolfe, 57 AD3d at1126).
Plaintiff further contends that the court abused its discretion in denying its motion fora mistrial based on "repeated" references to settlement demands. There were in fact twosuch references and, although plaintiff objected to both, plaintiff requested a mistrialonly with respect to the second reference, and then only as an alternative to a curativeinstruction. The court gave an explicit curative instruction to the jury in each instance,and plaintiff failed to object further. We thus conclude that plaintiff failed to preservethis contention for our review (see Vingo v Rosner, 29 AD3d 896, 897 [2006], lvdenied 8 NY3d 803 [2007]). In any event, we conclude that the curative instructionsgiven after both references "were sufficient to neutralize the prejudicial effect of theerror[s]" (Dennis v Capital Dist. Transp. Auth., 274 AD2d 802, 803[2000]).
[*2] Finally, we reject plaintiff'scontention that it was deprived of a fair trial by the court's comments and rulings. Thecourt has broad discretion " 'to control the courtroom, rule on the admission ofevidence, elicit and clarify testimony, expedite the proceedings and . . .admonish counsel and witnesses when necessary' " (Messinger v Mount Sinai Med.Ctr., 15 AD3d 189, 189 [2005], lv dismissed 5 NY3d 820 [2005]), andhere the court's conduct did not deprive plaintiff of a fair trial. Present—Scudder,P.J., Carni, Sconiers, Valentino and Whalen, JJ.