DANIEU v. 109 SOUTH UNION ST LLC (2008)

Plaintiffs commenced this action seeking damages for injuries sustained by Patrick Danieu (plaintiff) when he fell on stairs after the handrailing came loose from the wall in a building owned by defendant 109 South Union St., LLC and managed by defendant Flaum Management Company, Inc. Contrary to plaintiffs' contention, Supreme Court properly refused to instruct the jury that, if it found that defendants created an unsafe condition, then it may also find that defendants were negligent.   That theory was not supported by the evidence, and thus the court properly determined that such an instruction was inappropriate (see generally Deshommes v. Hussain, 47 A.D.3d 869, 850 N.Y.S.2d 614;  Sangiovanni v. Koloski, 31 A.D.3d 422, 422-423, 817 N.Y.S.2d 636;  D'Alessandro v. Eastman Kodak Co., 24 A.D.3d 1227, 1228, 805 N.Y.S.2d 916, lv. denied 6 N.Y.3d 712, 816 N.Y.S.2d 748, 849 N.E.2d 971).   The individual responsible for building maintenance testified for defendants that he did not make any repairs to the handrails in any stairway prior to plaintiff's fall, and that testimony was uncontroverted by plaintiffs.   Contrary to plaintiffs' further contention, because there is no evidence “ ‘that substantial justice has not been done’ ” (Stevens v. Atwal [Appeal No. 2], 30 A.D.3d 993, 994, 817 N.Y.S.2d 469), the court also properly denied plaintiff's post-trial motion to set aside the verdict and for a new trial in the interest of justice.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

MEMORANDUM: