Osmon v. Iskalo Development Corp.

94 A.D.3d 1456, 942 N.Y.S.2d 730

Opinion

Appeal from an order of the Supreme Court, Erie County (Frank A. Sedita, Jr., J.), entered September 23, 2010 in a personal injury action. The order, insofar as appealed from, granted that part of the motion of plaintiff to set aside the jury verdict with respect to defendant H&M Plumbing & Mechanical Contracting, Inc.

It is hereby ordered that the order insofar as appealed from is unanimously reversed on the law without costs, the post-trial motion is denied in its entirety and the verdict with respect to defendant H&M Plumbing & Mechanical Contracting, Inc. is reinstated.

Memorandum: Defendant H&M Plumbing & Mechanical Contracting, Inc. (H&M) appeals from an order granting that part of plaintiffs post-trial motion to set aside a jury verdict in favor of H&M. We reverse the order insofar as appealed from, deny the post-trial motion in its entirety and reinstate the jury verdict with respect to H&M. Plaintiff commenced this action seeking damages for injuries she sustained when she tripped over a ladder at property owned by defendant Iskalo Development Corporation (Iskalo). Iskalo entered into a contract with H&M to perform plumbing work on the premises. It is undisputed that plaintiff tripped over a ladder owned by H&M, but the jury’s conclusion that H&M was not negligent is supported by the record. Although the evidence established that the ladder was marked as belonging to H&M, it was unclear who placed the ladder in the hallway where plaintiff fell. The jury was entitled to determine that an employee of H&M did not place the ladder in the hallway or that the ladder’s brief and slight incursion into the hallway was not a dangerous condition. Thus, we conclude that the jury’s determination is one that reasonably could have been rendered based on the evidence presented at trial (see Ruddock v Happell, 307 AD2d 719, 720-721 [2003]). Present — Centra, J.P., Peradotto, Sconiers and Martoche, JJ.