Marwin v. Top Notch Construction Corp.

Appellate Division of the Supreme Court of New York

Marwin v. Top Notch Construction Corp.

50 A.D.3d 977, 856 N.Y.S.2d 238

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 22, 2008

StatusPublished

Cited by3 cases

This text of 50 A.D.3d 977 (Marwin v. Top Notch Construction Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Marwin v. Top Notch Construction Corp., 50 A.D.3d 977, 856 N.Y.S.2d 238 (N.Y. Ct. App. 2008).

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Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (O’Donoghue, J.), entered December 7, 2006, which denied her motion pursuant to CPLR 4404 (a) to set aside a jury verdict in favor of the defendants on the issue of liability on the grounds, inter alia, that her proposed expert witness was improperly precluded from testifying, and as against the weight of the evidence, and for a new trial on that issue.

Ordered that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

Under the circumstances, including, among other things, the [978]*978plaintiffs belated expert disclosure pursuant to CPLR 3101 (d) (1) (i), and the potential prejudice to the defendants, the Supreme Court providently exercised its discretion in precluding the plaintiffs expert from testifying (see CPLR 3101 [d] [1] [i]; Bickford v St. Francis Hosp., 19 AD3d 344, 346 [2005]; Fava v City of New York, 5 AD3d 724, 724-725 [2004]).

Moreover, and contrary to the plaintiffs contention, a fair interpretation of the evidence supports the jury’s finding that the defendants were not negligent; thus, the jury’s verdict was not against the weight of the evidence (see Leodis v J.M. Dennis Constr., Inc., 46 AD3d 518 [2007]; Pearson v Walker, 44 AD3d 1019 [2007]; Marino v Cunningham, 44 AD3d 912 [2007]; Abayev v Jaypson Jewelry Mfg. Corp., 44 AD3d 693 [2007]; Nicastro v Park, 113 AD2d 129, 133-134 [1985]). Since the jury found that the defendants were not negligent, we need not consider the plaintiff’s contentions that the jury’s findings concerning her own conduct demonstrated confusion and were inconsistent. Skelos, J.P., Dillon, Leventhal and Chambers, JJ., concur.

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In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (O’Donoghue, J.), entered December 7, 2006, which denied her motion pursuant to CPLR 4404 (a) to set aside a jury verdict in favor of the defendants on the issue of liability on the grounds, inter alia, that her proposed expert witness was improperly precluded from testifying, and as against the weight of the evidence, and for a new trial on that issue.

Ordered that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

Under the circumstances, including, among other things, the [978]*978plaintiffs belated expert disclosure pursuant to CPLR 3101 (d) (1) (i), and the potential prejudice to the defendants, the Supreme Court providently exercised its discretion in precluding the plaintiffs expert from testifying (see CPLR 3101 [d] [1] [i]; Bickford v St. Francis Hosp., 19 AD3d 344, 346 [2005]; Fava v City of New York, 5 AD3d 724, 724-725 [2004]).

Moreover, and contrary to the plaintiffs contention, a fair interpretation of the evidence supports the jury’s finding that the defendants were not negligent; thus, the jury’s verdict was not against the weight of the evidence (see Leodis v J.M. Dennis Constr., Inc., 46 AD3d 518 [2007]; Pearson v Walker, 44 AD3d 1019 [2007]; Marino v Cunningham, 44 AD3d 912 [2007]; Abayev v Jaypson Jewelry Mfg. Corp., 44 AD3d 693 [2007]; Nicastro v Park, 113 AD2d 129, 133-134 [1985]). Since the jury found that the defendants were not negligent, we need not consider the plaintiff’s contentions that the jury’s findings concerning her own conduct demonstrated confusion and were inconsistent. Skelos, J.P., Dillon, Leventhal and Chambers, JJ., concur.

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Bluebook (online)

50 A.D.3d 977, 856 N.Y.S.2d 238, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marwin-v-top-notch-construction-corp-nyappdiv-2008.

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