Kartychak v. Consolidated Edison of New York, Inc.

304 A.D.2d 487, 758 N.Y.S.2d 644, 2003 N.Y. App. Div. LEXIS 4513

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 29, 2003
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Kibbie Payne, J.), entered November 27, 2001, upon a jury verdict, in favor of the defendant-respondent Consolidated Edison of New York (Con Ed), unanimously affirmed, without costs.

The verdict, finding defendant Con Ed not responsible for plaintiffs harm, was not against the weight of the evidence, which, fairly considered, permitted the jury reasonably to conclude (see Kennedy v New York City Health & Hosps. Corp., 300 AD2d 146 [2002]) that Con Ed’s employees properly set up, arranged and barricaded the work area behind their truck, and that plaintiffs accident was instead attributable to her own conduct in lifting up the barricade tape, squeezing through the barrier and walking through the work site, in the course of which she fell into an open transformer vault. Plaintiffs description of the work area as set off by just one cone was contradicted by other trial testimony, photographs of the work site and a diagram drawn by a security guard on an accident report.

The trial court properly admitted into evidence photographs of the recreated work site, three witnesses having testified that the photographs fairly and accurately depicted the general setup behind the Con Ed truck at the time of the accident (see Kaplan v Einy, 209 AD2d 248, 251 [1994]).

We have considered plaintiffs’ remaining arguments and find them unavailing. Concur — Buckley, P.J., Mazzarelli, Ellerin, Williams and Gonzalez, JJ.