HIGGINS v. ARMORED MOTOR SERVICE OF AMERICA INC (2004)

 Plaintiffs commenced this action to recover damages for injuries sustained by Daniel Higgins (plaintiff) when he slipped and fell on ice on defendant's premises.   Supreme Court properly granted that part of plaintiffs' motion seeking to set aside as against the weight of the evidence the jury verdict finding that defendant was not negligent.   Plaintiffs presented undisputed proof that plaintiff fell on ice on the sidewalk outside defendant's building, the area of his fall had not been salted, the temperature remained below freezing and there was no precipitation on the day of the accident.   Defendant submitted only testimony with respect to its general maintenance practices from a witness who had no recollection of the day that plaintiff slipped and fell.  “The determination of the trial court to set aside a jury verdict as against the weight of the evidence must be accorded great respect and, where the court's determination is not unreasonable, we will not intervene to reverse that finding” (American Linen Supply Co. v. M.W.S. Enters., 6 A.D.3d 1079, 1080, 776 N.Y.S.2d 387 [internal quotation marks and citations omitted], lv. dismissed 3 N.Y.3d 702, 785 N.Y.S.2d 28, 818 N.E.2d 670).   Here, the court reasonably determined that the facts so preponderated in plaintiffs' favor that the jury's finding could not have been reached on any fair interpretation of the evidence (see Grant-White v. Hornbarger, 12 A.D.3d 1066, 784 N.Y.S.2d 804;  Bendersky v. M & O Enters. Corp., 299 A.D.2d 434, 435, 751 N.Y.S.2d 269). Thus, the verdict was properly set aside.

 The court also properly denied that part of plaintiffs' motion to strike the answer based upon defendant's failure to provide a videotape of the incident, which was recorded on defendant's security system.   Because the videotape was recycled by defendant before litigation and as a normal business practice (see Conderman v. Rochester Gas & Elec. Corp., 262 A.D.2d 1068, 1070, 693 N.Y.S.2d 787), the court did not abuse its discretion by fashioning an alternative remedy of permitting plaintiffs to introduce evidence of a statement by defendant's employee acknowledging the existence of the videotape and charging the jury in accordance with PJI 1:77.1 (2004) (see generally Hartford Fire Ins. Co. v. Regenerative Bldg. Constr., 271 A.D.2d 862, 863-864, 706 N.Y.S.2d 236).

It is hereby ORDERED that the order so appealed from be and the same hereby is affirmed without costs.

We respectfully dissent.   We concur with the majority that Supreme Court properly denied that part of plaintiffs' motion to strike the answer based upon defendant's failure to provide a videotape of the incident.   We differ only with the majority's conclusion that the verdict was properly set aside.   In our view, the verdict is not “palpably irrational or wrong” (Dannick v. County of Onondaga, 191 A.D.2d 963, 964, 595 N.Y.S.2d 575), and thus the court erred in setting it aside as against the weight of the evidence (cf. American Linen Supply Co. v. M.W.S. Enters., 6 A.D.3d 1079, 1080, 776 N.Y.S.2d 387, lv. dismissed 3 N.Y.3d 702, 785 N.Y.S.2d 28, 818 N.E.2d 670).   The proof adduced at trial included the testimony of Daniel Higgins (plaintiff) that the sidewalk upon which he fell while exiting the building did not have an accumulation of water on it when he entered the building 1 1/212 hours earlier, and that during those 1 1/212 hours there was no precipitation.   Plaintiff further testified that he did not encounter any slippery conditions on the way into the building from his vehicle and did not report any such conditions to defendant prior to falling.   Thus, we conclude that the jury could have fairly inferred from the evidence that plaintiffs failed to sustain their burden of proving that defendant had notice of the alleged icy condition (see Wright v. Saeed Deli & Grocery [Appeal No. 2], 275 A.D.2d 999, 999-1000, 713 N.Y.S.2d 639, lv. denied 96 N.Y.2d 701, 722 N.Y.S.2d 793, 745 N.E.2d 1015;  see generally Cohen v. Hallmark Cards, 45 N.Y.2d 493, 498-499, 410 N.Y.S.2d 282, 382 N.E.2d 1145;  Lewis v. Bama Hotel Corp., 297 A.D.2d 422, 423, 745 N.Y.S.2d 627;  Herbst v. Nevele Country Club, 251 A.D.2d 864, 864-865, 674 N.Y.S.2d 497).   We would therefore reverse the order, deny that part of plaintiffs' motion to set aside the verdict and reinstate the verdict.

MEMORANDUM: