HIZAM v. MOSSA (1999)

 Plaintiff appeals from a judgment in favor of defendant in this negligence action.   Plaintiff contends that the jury verdict is against the weight of the evidence and that defendant was negligent as a matter of law.   We disagree.  “Where varying inferences from the evidence are possible, the issue of negligence is left to the jury” (Harris v. Armstrong, 97 A.D.2d 947, 468 N.Y.S.2d 740, affd. 64 N.Y.2d 700, 485 N.Y.S.2d 523, 474 N.E.2d 1191, citing Eddy v. Syracuse Univ., 78 A.D.2d 989, 990, 433 N.Y.S.2d 923, lv. denied 52 N.Y.2d 705, 437 N.Y.S.2d 1028, 419 N.E.2d 876).   Here, defendant was holding a ladder for plaintiff but left his position temporarily to retrieve a tool.   Plaintiff fell during defendant's absence.   The jury was entitled to conclude that defendant was not negligent.

 Plaintiff further contends that he was deprived of a fair trial because of improper statements made by defendant's attorney.   The alleged improper statements were in fact innocent references to the ethnic heritage of the parties and, in any event, were fair response to statements regarding plaintiff's recent immigration made by plaintiff's attorney in his opening statement.

Judgment unanimously affirmed with costs.

MEMORANDUM: