Echavarria v. Cromwell Associates

232 A.D.2d 347, 648 N.Y.S.2d 600, 1996 N.Y. App. Div. LEXIS 11197

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 31, 1996
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Louise Gruner Gans, J., and a jury), entered August 24, 1995, awarding damages to plaintiffs in a personal injury action, unanimously affirmed, without costs.

The trial court properly directed a verdict in plaintiffs’ favor on the issue of defendants’ negligent maintenance of the steps on which the injured plaintiff fell, based on defense counsel’s admissions of negligence during his opening statement, which were not refuted by the evidence presented at trial, and were "fatal” and "ruinous” to any defense on this issue (De Vito v Katsch, 157 AD2d 413, 416, 418). Plaintiff’s attorney’s summation, viewed in its entirety, did not create a climate of hostility so pervasive as to require a mistrial (see, Rohring v City of Niagara Falls, 192 AD2d 228, 230-231), and any prejudice was immediately cured by the court’s instructions. We disagree with defendants that the trial court’s charge overemphasized the evidence against them, and find, to the contrary, that the court clearly and fairly summarized their position. Defendants’ motion to set aside the verdict as inconsistent, in finding that plaintiff was negligent but that her negligence was not a proximate cause of the accident, was properly denied as untimely, having been made after discharge of the jury (Barry v Manglass, 55 NY2d 803, 806). In any event, the motion was without merit (Gaston v Vicio Realty Co., 215 AD2d 174, Iv denied 87 NY2d 804, cert denied — US —, 116 S Ct 1570). Concur—Rosenberger, J. P., Ellerin, Rubin, Kupferman and Nardelli, JJ.