Opinion
372 CA 19-01298
08-20-2020
Kristen DEFISHER and Paul Defisher, Plaintiffs-Appellants, v. PPZ SUPERMARKETS, INC., Doing Business as Paton's Market Place, and BPMZ, LLC, Defendants-Respondents.
ANDREWS, BERNSTEIN, MARANTO & NICOTRA, PLLC, BUFFALO (ANDREW J. CONNELLY OF COUNSEL), FOR PLAINTIFFS-APPELLANTS. THE LAW FIRM OF FRANK W. MILLER, EAST SYRACUSE (CHARLES C. SPAGNOLI OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
ANDREWS, BERNSTEIN, MARANTO & NICOTRA, PLLC, BUFFALO (ANDREW J. CONNELLY OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
THE LAW FIRM OF FRANK W. MILLER, EAST SYRACUSE (CHARLES C. SPAGNOLI OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this negligence action seeking to recover damages for injuries sustained by Kristen DeFisher (plaintiff) when she slipped and fell, allegedly due to water on the floor, in the vestibule of defendants' supermarket. Plaintiffs appeal from a judgment entered in favor of defendants based upon a jury verdict finding that there was no water on the floor where plaintiff fell. We affirm.
Plaintiffs contend that Supreme Court improperly reversed a purported factual finding in its earlier spoliation order by ruling, on the eve of trial, that defendants would be permitted to contest whether video footage that had not been retained would have captured the area where plaintiff fell. Plaintiffs failed to include the spoliation order in the record on appeal, however, and we are thus unable to review their contention (see Resetarits Constr. Corp. v. City of Niagara Falls , 133 A.D.3d 1229, 1229, 18 N.Y.S.3d 914 [4th Dept. 2015] ; Cherry v. Cherry , 34 A.D.3d 1186, 1186, 824 N.Y.S.2d 701 [4th Dept. 2006] ). Plaintiffs, " ‘as the appellant[s], submitted this appeal on an incomplete record and must suffer the consequences’ " ( Cherry , 34 A.D.3d at 1186, 824 N.Y.S.2d 701 ).
We reject plaintiffs' further contention that the court erred in denying their motion for a directed verdict made at the close of proof. It is well settled that "a directed verdict is appropriate where the ... court finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party ... In determining whether to grant a motion for a directed verdict pursuant to CPLR 4401, the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in [the] light most favorable to the nonmovant" ( Brenner v. Dixon , 98 A.D.3d 1246, 1247, 951 N.Y.S.2d 635 [4th Dept. 2012] [internal quotation marks omitted]; see Szczerbiak v. Pilat , 90 N.Y.2d 553, 556, 664 N.Y.S.2d 252, 686 N.E.2d 1346 [1997] ). "[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury" ( Trincere v. County of Suffolk , 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489 [1997] [internal quotation marks omitted] ). Here, the parties introduced conflicting evidence regarding the existence of water on the floor where plaintiff fell, which presented a question of fact for the jury to resolve (see Grizzanto v. Golub Corp. , 188 A.D.2d 1015, 1015, 592 N.Y.S.2d 163 [4th Dept. 1992] ; cf. Santana v. Western Beef Retail, Inc. , 132 A.D.3d 837, 838, 18 N.Y.S.3d 154 [2d Dept. 2015] ).
Plaintiffs also challenge the verdict on the ground that it is against the weight of the evidence. As a preliminary matter, we conclude that plaintiffs were not required to preserve their contention that the jury verdict was contrary to the weight of the evidence by making a postverdict motion for a new trial (see Evans v. New York City Tr. Auth. , 179 A.D.3d 105, 109-111, 113 N.Y.S.3d 127 [2d Dept. 2019] ). Inasmuch as the trial court is authorized to order a new trial "on its own initiative" when the verdict is contrary to the weight of the evidence ( CPLR 4404 [a] ) and "the power of the Appellate Division ... is as broad as that of the trial court" ( Northern Westchester Professional Park Assoc. v. Town of Bedford , 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809 [1983] ), "this Court also possesses the power to order a new trial where the appellant made no motion for that relief in the trial court" ( Evans , 179 A.D.3d at 110, 113 N.Y.S.3d 127 ; see Bintz v. City of Hornell , 268 App Div 742, 747, 53 N.Y.S.2d 803 [4th Dept. 1945], affd 295 N.Y. 628, 64 N.E.2d 654 [1945] ; see also CPLR 5501 [c] ; Cohen v. Hallmark Cards, Inc. , 45 N.Y.2d 493, 500, 410 N.Y.S.2d 282, 382 N.E.2d 1145 [1978] ). To the extent that our prior decisions hold otherwise, they should no longer be followed (see e.g. Cyrus v. Wal-Mart Stores E., LP , 160 A.D.3d 1487, 1488, 72 N.Y.S.3d 881 [4th Dept. 2018] ; Likos v. Niagara Frontier Tr. Metro Sys., Inc. , 149 A.D.3d 1474, 1476, 53 N.Y.S.3d 739 [4th Dept. 2017] ; Mazella v. Beals , 124 A.D.3d 1328, 1329, 1 N.Y.S.3d 663 [4th Dept. 2015] ; Barnes v. Dellapenta , 111 A.D.3d 1287, 1288, 974 N.Y.S.2d 707 [4th Dept. 2013] ; Lucas v. Weiner , 99 A.D.3d 1202, 1202-1203, 952 N.Y.S.2d 863 [4th Dept. 2012] ; Harris v. Stoelzel , 96 A.D.3d 1459, 1459-1460, 945 N.Y.S.2d 910 [4th Dept. 2012] ; Murdoch v. Niagara Falls Bridge Commn. , 81 A.D.3d 1456, 1457, 917 N.Y.S.2d 501 [4th Dept. 2011], lv denied 17 N.Y.3d 702, 2011 WL 2237281 [2011] ; Homan v. Herzig [Appeal No. 2], 55 A.D.3d 1413, 1413-1414, 865 N.Y.S.2d 189 [4th Dept. 2008] ).
Contrary to plaintiffs' contention, however, the verdict is not against the weight of the evidence. It is well settled that a verdict may be set aside as against the weight of the evidence only if "the evidence so preponderate[d] in favor of the [plaintiffs] that [the verdict] could not have been reached on any fair interpretation of the evidence" ( Lolik v. Big V Supermarkets , 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163 [1995] [internal quotation marks omitted] ). Here, the conflicting evidence regarding the existence of the alleged dangerous condition raised a question of credibility to be resolved by the jury (see Parr v. Mongarella , 77 A.D.3d 1429, 1430, 909 N.Y.S.2d 594 [4th Dept. 2010] ), and we conclude that "the jury's determination that there was no water on the [floor of the vestibule] where the incident occurred was supported by a fair interpretation of the evidence" ( Grullon v. West 48th St. Redevelopment Corp. , 75 A.D.3d 621, 623, 905 N.Y.S.2d 278 [2d Dept. 2010] ).
We have reviewed plaintiffs' remaining contentions and conclude that they lack merit.