| Mereau v Prentice |
| 2016 NY Slip Op 03782 [139 AD3d 1209] |
| May 12, 2016 |
| Appellate Division, Third Department |
[*1]
| John J. Mereau et al., Appellants, v Peter M. Prentice,Doing Business as Prentice Construction, et al., Defendants, and Freedom Mechanicals,LLC, Doing Business as Cornerstone Services, Named Herein as Donald J. Colbert II,and Another, Respondent. |
Robert E. Lahm PLLC, Syracuse (Robert E. Lahm of counsel), for appellants.
Santacrose & Frary, Albany (Keith M. Frary of counsel), for respondent.
Devine, J. Appeals (1) from a judgment of the Supreme Court (Demarest, J.), enteredMarch 9, 2015 in St. Lawrence County, upon a verdict rendered in favor of defendantFreedom Mechanicals, LLC, and (2) from an order of said court, entered April 24, 2015in St. Lawrence County, which denied plaintiffs' motion to set aside the verdict.
Plaintiffs contracted with defendant Peter M. Prentice to construct their home in theTown of Louisville, St. Lawrence County. Prentice subcontracted aspects of the work to,among others, defendant Freedom Mechanicals, LLC (hereinafter defendant). OnJanuary 5, 2011, plaintiff John J. Mereau visited the construction site, fell down an openelevator shaft on the second floor of the unfinished residence and sustained permanentand severe injuries.
[*2] Mereau and,derivatively, his wife commenced two negligence actions against the various defendantsthat were subsequently consolidated. The case proceeded to trial against Prentice anddefendant, although only the claims involving defendant reached the jury, which returneda verdict in its favor. Plaintiffs thereafter moved to set aside the verdict, arguing that itwas not supported by credible evidence and that Supreme Court erred in refusing to givea missing witness charge with regard to an employee of defendant who did not testify.Supreme Court denied the motion. Plaintiffs appeal from both the judgment rendered onthe verdict and the order denying the postverdict motion.
We affirm. Plaintiffs assert that the verdict was against the weight of the evidencepresented at trial, pointing to proof suggesting that an employee of defendant wasresponsible for removing the wooden barrier. In assessing whether plaintiffs are correct,the relevant question is whether "the evidence so preponderate[d] in [plaintiffs'] favor. . . that [the verdict] could not have been reached on any fair interpretationof the evidence" (Lolik v Big v Supermarkets, 86 NY2d 744, 746 [1995][internal quotation marks and citation omitted]; see Grassi v Ulrich, 87 NY2d954, 956 [1996]; Longtin vMiller, 133 AD3d 939, 940 [2015]). Our review of the trial evidence does notreveal such to be the case.
Prentice testified that he inspected the construction site every day and the barrierblocking the opening to the elevator shaft was in place on the morning of the accident.Defendant was responsible for duct work that ran through the elevator shaft, and Prenticetestified that one of defendant's employees, Frank Trombley, arrived at the site around10:00 a.m. with the stated intention of swapping out undersized ductwork that hadpreviously been installed. A worker employed by Prentice agreed that one of defendant'semployees was at the site that morning. Prentice found the barrier missing from the shaftopening after Mereau's accident and, while he did not see anyone remove the barrier,Prentice speculated that Trombley had done so in order to replace the ductwork.
The trial evidence was far from conclusive, however, in establishing that anyoneemployed by defendant was at the site on the morning of the accident. Portions ofTrombley's deposition testimony were read into the record, and he stated that no oneemployed by defendant was working at the construction site on the day of the accident.Defendant's principal confirmed that Trombley was working elsewhere that day, andbusiness records corroborating his assertions were entered into evidence. Other witnessesalso called the accounts of Prentice and his employee into question. Defendant EricYoung, another subcontractor on the project who had successfully moved for summaryjudgment dismissing the claims against him prior to trial, testified that he was workingon the second floor on the day of the accident and did not see or hear any of defendant'semployees. Young also undercut Prentice's claim that Trombley was changing theductwork in the elevator shaft, testifying that Prentice had authorized Young to work inthe shaft at 8:00 a.m. on the day of the accident because the ductwork had beencompleted. The remaining witnesses either did not see, or could not confirm seeing,Trombley or another employee of defendant at the construction site on the day of theaccident. A significant array of evidence therefore suggested that neither Trombley norany of defendant's other employees were present to remove the barrier in the leadup toMereau's accident. The jury chose to credit this proof and, deferring to its assessments ofcredibility, we cannot say that the verdict was against the weight of the evidence (see Minutolo v County ofBroome, 130 AD3d 1202, 1203 [2015]; Johnson v Ingalls, 95 AD3d 1398, 1399 [2012]; Perry v Wine & Roses,Inc., 40 AD3d 1299, 1300 [2007]).
As a final matter, plaintiffs argue that Supreme Court erred in declining to give amissing witness charge with regard to Trombley. Plaintiffs subpoenaed Trombley but didnot call him to the stand, and both plaintiffs and defendant read certain portions of hisdeposition [*3]testimony into the record.[FN*] Defendant also chose notto call Trombley as a witness, and plaintiffs declined the opportunity to submit anyfurther proof in rebuttal. Plaintiffs instead waited until after the close of proof to requesta missing witness charge, thereby depriving defendant of "any opportunity to account for[Trombley's] absence, argue that [it] did not have the requisite control over him, orattempt to procure his appearance" (Herman v Moore, 134 AD3d 543, 545 [2015]; seePeople v Gonzalez, 68 NY2d 424, 427-428 [1986]; Popolizio v County ofSchenectady, 62 AD3d 1181, 1184 [2009]). Inasmuch as plaintiffs' request wasuntimely and would have resulted in undue surprise to defendant if granted, its rejectionby Supreme Court was not an abuse of discretion (see People v Alexander, 127 AD3d 1429, 1433 [2015],lv denied 25 NY3d 1197 [2015]; People v Turner, 73 AD3d 1282, 1283-1284 [2010], lvdenied 15 NY3d 896 [2010]; Popolizio v County of Schenectady, 62 AD3dat 1184; cf. R. T. Cornell Pharmacy v Guzzo, 135 AD2d 1000, 1002 [1987],lv dismissed 71 NY2d 928 [1988]).
McCarthy, J.P., Egan Jr., Rose and Clark, JJ., concur. Ordered that the judgment andorder are affirmed, with costs.
Footnote *:The record is silent as towhy Trombley did not testify in person, and Supreme Court acknowledged during jurydeliberations that it "really [did not] know" why he was absent.