STROUSE v. UNITED PARCEL SERVICE (2000)

 Plaintiffs appeal from a judgment entered in favor of defendant upon a jury verdict of no cause of action.   Plaintiffs commenced this action seeking damages for injuries allegedly sustained by Richard A. Strouse (plaintiff) when he moved a heavy box from a counter scale to a floor scale at the direction of defendant's employee at the United Parcel Service Customer Service Center in New Hartford.   Plaintiffs failed to preserve for our review their contention that this Court's prior denial of defendant's motion for summary judgment (Strouse v. United Parcel Serv., 245 A.D.2d 1117, 666 N.Y.S.2d 97) is the law of the case and limits the admissibility of evidence at trial.   In any event, that contention is without merit (see, Banque Indosuez v. Sopwith Holdings Corp., 257 A.D.2d 519, 520, 684 N.Y.S.2d 531, lv. denied 93 N.Y.2d 806, 689 N.Y.S.2d 707, 711 N.E.2d 983).  “The order denying summary judgment * * * established only that the motion papers indicated that there were triable issues of fact” (Caster v. Increda-Meal [appeal No. 2], 238 A.D.2d 917, 919, 661 N.Y.S.2d 125).   Contrary to plaintiffs' contention, Supreme Court properly instructed the jury on the issue of foreseeability (see, PJI 2:12).   We also reject plaintiffs' contention that the verdict is against the weight of the evidence.   Based upon the proof adduced at trial, the jury could rationally conclude that defendant's employee reasonably believed that plaintiff could move the box without assistance (see, Riggio v. New Creation Fellowship of Buffalo, 249 A.D.2d 942, 671 N.Y.S.2d 397).   Plaintiffs' remaining contention is without merit.

Judgment unanimously affirmed without costs.

MEMORANDUM: