S & W X-Ray of Rochester, New York, Inc. v. Richard Maselli Plumbing & Heating, Inc.

210 A.D.2d 953, 621 N.Y.S.2d 424, 1994 N.Y. App. Div. LEXIS 13431

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 23, 1994
• Status: Published

Opinion

—Judgment unanimously affirmed with costs. Memorandum: On this appeal from a judgment following a jury trial, defendant contends that it was inappropriate for plaintiffs counsel to comment about the fact that the manufacturer of the clamp, which was used by defendant in repairing plaintiffs fire sprinkler system, was not a party to the lawsuit. Defendant’s counsel raised that issue in his opening statement and on cross-examination and thus opened the door for comment by plaintiffs counsel (see, Cerasuoli v Brevetti, 166 AD2d 403). The other alleged improprieties in the summation of plaintiffs counsel are not preserved for review and, in any event, did not deprive defendant of a fair trial (see, Rohring v City of Niagara Falls, 192 AD2d 228, 230-231, affd 84 NY2d 60).

Defendant’s appeal, as limited by defendant’s brief (see, Ciesinski v Town of Aurora, 202 AD2d 984), does not question whether defendant owed plaintiff a duty of reasonable care independent of its contractual obligations (see, Sommer v Federal Signal Corp., 79 NY2d 540, 553; Bristol-Myers Squibb Indus. Div. v Delta Star, 206 AD2d 177). The evidence supports the jury’s determination that defendant failed to perform the repair in accordance with accepted standards of the trade and thus violated that duty (see, Milau Assocs. v North Ave. Dev. Corp., 42 NY2d 482, 486). (Appeal from Judgment of Supreme Court, Onondaga County, Elliott, J.—Negligence.) Present—Balio, J. P., Lawton, Fallon, Wesley and Doerr, JJ.