MICHAEL JABCZYNSKI AND BRENDA JABCZYNSKI PLAINTIFFS RESPONDENTS v. ADVANCED DRYING AND RESTORATION DEFENDANT APPELLANT (2016)

MEMORANDUM AND ORDER

AND NATIONWIDE MUTUAL FIRE INSURANCE COMPANY,

DEFENDANT.

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

Memorandum:  In this breach of contract action, Advanced Drying and Restoration (defendant) appeals from an order granting plaintiffs' motion to set aside the jury verdict, directing judgment as a matter of law on the issue that a contract existed between defendant and plaintiff Michael Jabczynski, and ordering a new trial on the issues of breach, proximate cause, and damages.  We affirm.

“[W]hile the existence of a contract is a question of fact, the question of whether a certain or undisputed state of facts establishes a contract is one of law for the courts” (Resetarits Constr.  Corp. v Elizabeth Pierce Olmsted, M.D. Center for the Visually Impaired [appeal No. 2], 118 AD3d 1454, 1455 [internal quotation marks omitted] ).  Moreover, “ ‘[i]t is well settled that a motion to set aside a verdict as contrary to the weight of the evidence invokes the court's discretion’ ․, and ‘that discretion is at its broadest [where, as here,] it appears that the unsuccessful litigant's evidentiary position was particularly strong compared to that of the victor’ “ (Pellegrino v. Youll, 37 AD3d 1064, 1064;  see CPLR 4404[a] ).  Contrary to defendant's contention, Supreme Court did not abuse its discretion in setting aside the verdict inasmuch as the evidence adduced at trial, including the signed agreement between the parties, established as a matter of law the existence of an enforceable contract (see generally Resetarits Constr.  Corp., 118 AD3d at 1455).

Frances E. Cafarell

Clerk of the Court