GARRIS v. MART INC (2007)

Plaintiffs commenced this action to recover damages for injuries allegedly sustained by Ida M. Garris (plaintiff) when she fell in defendant's store.   Plaintiff testified at trial that one of defendant's employees collided with her, causing her to fall.   The store employee, however, testified that he had physical contact with plaintiff only after she had started to fall, and he testified that he was merely attempting to help her to the ground.   He further testified that plaintiff admitted to him that she previously had been injured in a serious car accident and “that was the reason that her knee gives out on her.”   The jury returned a verdict finding that defendant was not negligent, and plaintiffs moved to set aside the verdict and for a directed verdict on liability and a new trial on damages only or, alternatively, a new trial on liability and damages.   Supreme Court properly denied plaintiffs' motion.

 We reject the contention of plaintiffs that the court erred in refusing to give a modified jury instruction pursuant to PJI 2:90.   That instruction deals with premises liability resulting from defects or dangerous conditions on premises and therefore does not apply to this case.   Contrary to plaintiffs' further contention, “the charge as a whole adequately conveyed the proper legal principles” (Schmidt v. Buffalo Gen. Hosp., 278 A.D.2d 827, 828, 718 N.Y.S.2d 514, lv. denied 96 N.Y.2d 710, 726 N.Y.S.2d 373, 750 N.E.2d 75;  see Koziol v. Wright, 26 A.D.3d 793, 809 N.Y.S.2d 350).

 Plaintiffs failed to preserve for our review their further contention that the court erred in failing to marshal the evidence (see CPLR 4110-b;  Kuperman v. Waller, 307 A.D.2d 810, 762 N.Y.S.2d 804, lv. denied 1 N.Y.3d 501, 775 N.Y.S.2d 238, 807 N.E.2d 288;  Hageman v. Santasiero, 277 A.D.2d 1049, 716 N.Y.S.2d 485;  Brown v. City of New York, 154 A.D.2d 325, 545 N.Y.S.2d 801;  cf. Bender v. Nassau Hosp., 99 A.D.2d 744, 746-747, 471 N.Y.S.2d 657).   Additionally, by failing to object to the supplemental instruction before the jury resumed its deliberations, plaintiffs failed to preserve for our review their contention that the supplemental instruction was erroneous (see CPLR 4110-b;  Hageman, 277 A.D.2d at 1049, 716 N.Y.S.2d 485;  Groat v. Price Chopper Operating Co., 236 A.D.2d 854, 653 N.Y.S.2d 910, lv. denied 90 N.Y.2d 803, 661 N.Y.S.2d 179, 683 N.E.2d 1053).  “In the absence of preservation, a jury verdict will not be set aside based on an alleged error in the charge [or supplemental instruction] where, as here, the alleged error is not fundamental, i.e., ‘it is [not] so significant that the jury was prevented from fairly considering the issues at trial’ ” (Wood v. Strong Mem. Hosp. of Univ. of Rochester, 273 A.D.2d 929, 930, 709 N.Y.S.2d 779, quoting Kilburn v. Acands, Inc., 187 A.D.2d 988, 989, 590 N.Y.S.2d 611).   Finally, we reject plaintiffs' contention that the verdict is against the weight of the evidence (see generally Grassi v. Ulrich, 87 N.Y.2d 954, 956, 641 N.Y.S.2d 588, 664 N.E.2d 499;  Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163).

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

MEMORANDUM: