Opinion
July 16, 1993
Appeal from the Supreme Court, Erie County, Mintz, J.
Present — Callahan, J.P., Green, Pine, Fallon and Davis, JJ.
Order reversed on the law with costs, motion denied and verdict reinstated. Memorandum: Supreme Court erred in setting aside the jury verdict in favor of plaintiffs pursuant to CPLR 4404. At the close of proof, the court denied defendants' motion for a directed verdict because there were questions of fact for the jury with respect to the two issues raised: (1) "general negligence" and (2) the known vicious propensities of defendants' dog. The court then instructed the jury on those theories. Defendants did not take exception to the charge as delivered, nor did they object to the verdict sheet setting forth the two separate and distinct theories of liability. The jury found: (1) that defendants were negligent and their negligence was a proximate cause of the accident, and (2) that the dog did not possess vicious propensities.
By failing to register any protest to the charge, the instructions "became the law applicable to the determination of the rights of the parties * * * and thus established the legal standard by which the sufficiency of the evidence to support the verdict must be judged" (Harris v. Armstrong, 64 N.Y.2d 700, 702). In evaluating the evidence in light of the court's instructions, we cannot say that the jury's verdict finding that defendants were negligent and that their negligence was a proximate cause of the accident is without factual foundation (see, Harris v Armstrong, 97 A.D.2d 947, affd 64 N.Y.2d 700, supra).
"In deciding whether to grant a motion under CPLR 4404 to set aside the verdict, a court should be guided by the rule that if the verdict is one which reasonable men could have rendered after receiving conflicting evidence, the court should not substitute its judgment in place of the verdict" (Harris v. Armstrong, supra, at 947; see also, Kuncio v. Millard Fillmore Hosp., 117 A.D.2d 975, 976, lv denied 68 N.Y.2d 608). Where varying inferences from the evidence are possible, the issue of negligence is left to the jury (Eddy v. Syracuse Univ., 78 A.D.2d 989, lv denied 52 N.Y.2d 705).
All concur except Pine, J., who dissents and votes to affirm for reasons stated in decision at Supreme Court, Mintz, J.