MAPLEWOOD INC v. WOOD (2005)

In an action to recover damages for breach of contract, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Brandveen, J.), entered June 21, 2004, which, upon a jury verdict, is in favor of the defendants and against it, in effect, dismissing the complaint.

ORDERED that the judgment is affirmed, with costs.

 Whether a witness should be qualified as an expert is a determination left to the discretion of the trial court, the exercise of which will not be disturbed in the absence of a serious mistake, error of law, or an improvident exercise of discretion (see Steinbuch v. Stern, 2 A.D.3d 709, 710, 770 N.Y.S.2d 106).   Here, the Supreme Court providently exercised its discretion in qualifying the defendants' witness as an expert on the basis of his expertise in land use, real estate, and zoning.   The witness's lack of experience with such matters in the Town of Hempstead goes to the weight of his testimony not to its admissibility (see Ochoa v. Jacobsen Division of Textron, Inc., 16 A.D.3d 393, 790 N.Y.S.2d 708;  Ariola v. Long, 197 A.D.2d 605, 602 N.Y.S.2d 666).

 The failure to deny an allegation in the complaint constitutes an admission to the truth of that allegation (see CPLR 3018[a];  Human Dev. Servs. of Port Chester v. Zoning Bd. of Appeals of the Vil. of Port Chester, 67 N.Y.2d 702, 705, 499 N.Y.S.2d 927, 490 N.E.2d 846;  Santiago v. County of Suffolk, 280 A.D.2d 594, 595, 720 N.Y.S.2d 540;  Mooney v. PCM Dev. Co., 238 A.D.2d 487, 488, 656 N.Y.S.2d 655).   Thus, the defendants admitted that the plaintiff had complied with the notice provision of the contract by failing to deny the allegation in the complaint that the plaintiff had complied with all of the requirements of the contract and the Supreme Court erred in permitting the defendants' attorney to argue in summation that the plaintiff had not complied with that provision (see Taggart v. Alexander's Inc., 90 A.D.2d 542, 544-545, 455 N.Y.S.2d 117).   Nevertheless, in light of the charge, it cannot be said that the Supreme Court's actions in this regard deprived the plaintiff of a fair trial, a requirement before reversal on this basis would be warranted (see Blanar v. Dickinson, 296 A.D.2d 431, 432, 745 N.Y.S.2d 65;  Tri-State Sol-Aire Corp. v. U.S. Fid. & Guar. Co., 161 A.D.2d 757, 556 N.Y.S.2d 656).

 The Supreme Court correctly denied the plaintiff's motion for a directed verdict as, after granting the defendant every favorable inference, the evidence presented a rational basis upon which the jury could have found in favor of the defendants (see CPLR 4401;  Rhabb v. New York City Hous. Auth., 41 N.Y.2d 200, 202, 391 N.Y.S.2d 540, 359 N.E.2d 1335;  Prestia v. Mathur, 293 A.D.2d 729, 730, 742 N.Y.S.2d 80).   The Supreme Court properly declined to set aside the jury's subsequent verdict in favor of the defendants (see CPLR 4404[a] ), since there was a valid line of reasoning and permissible inferences which could lead rational people to the conclusion reached by the jury based on the evidence presented at trial (see Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145).   Moreover, the verdict was supported by a fair interpretation of the evidence (see Nicastro v. Park, 113 A.D.2d 129, 495 N.Y.S.2d 184).

The appellant's remaining contentions are either unpreserved for appellate review or without merit.