LIVESEY v. [And A Third-Party Action.] (1998)

Supreme Court, Appellate Division, First Department, New York.

Mary Ellen LIVESEY, Plaintiff-Appellant, v. 1689 FIRST AVENUE, INC., Defendant-Respondent, Paradise Painting, Defendant. [And A Third-Party Action.]

Decided: December 22, 1998

MILONAS, J.P., WILLIAMS, ANDRIAS and SAXE, JJ.

Ephrem Wertenteil, for Plaintiff-Appellant. Jonathan Uejio, for Defendant-Respondent.

Judgment, Supreme Court, New York County (Robert Whelan, J.), entered April 22, 1998, which, upon the prior grant of defendant-third-party plaintiff's motion to set aside the jury verdict in plaintiff's favor for evidentiary insufficiency, dismissed the complaint, unanimously reversed, on the law, with costs, the motion denied and the jury's verdict in favor of plaintiff and against defendants 1689 First Avenue, Inc. and Paradise Painting reinstated. The Clerk is directed to enter judgment accordingly.

Contrary to the trial court's finding on the post-verdict motion, plaintiff's version of the events preceding the accident in which she was injured provided the jury with an adequate evidentiary basis upon which to infer that the hazard upon which plaintiff tripped was visible and apparent for a sufficient length of time to give rise to constructive notice of its existence.

Plaintiff's appeal from the court's decision dated November 20, 1995 has previously been dismissed sua sponte by order of this Court entered April 17, 1997 (M-1218), as having been taken from a non-appealable paper.

MEMORANDUM DECISION.

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