WRIGHT v. SAEED DELI GROCERY

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Supreme Court, Appellate Division, Fourth Department, New York.

Leon WRIGHT, Plaintiff-Appellant, v. SAEED DELI & GROCERY, Saeed Kassim, Ahmed Nasher and Anthony Kasper, Defendants-Respondents.  (Appeal No. 2.)

Decided: September 29, 2000

PRESENT:  GREEN, J.P., HAYES, HURLBUTT, BALIO and LAWTON, JJ. Leon Wright, for Plaintiff-Appellant. Galo M. Proano, Rochester, for Defendants-Respondents Saeed Deli & Grocery, Saeed Kassim and Ahmed Nasher. Dennis J. Bischof, Jr., Buffalo, for Defendant-Respondent Anthony Kasper.

 Supreme Court properly denied plaintiff's motion to set aside the jury verdict in favor of defendants.  “A motion to set aside a jury verdict of no cause of action should not be granted unless the preponderance of the evidence in favor of the moving party is so great that the verdict could not have been reached upon any fair interpretation of the evidence” (Dannick v. County of Onondaga, 191 A.D.2d 963, 964, 595 N.Y.S.2d 575;  see, Cohen v. Hallmark Cards, 45 N.Y.2d 493, 498-499, 410 N.Y.S.2d 282, 382 N.E.2d 1145).   Plaintiff testified that he fell inside defendant store when he slipped on water and ice and his foot became caught in a hole in the floor.   An eyewitness testified for defendants, however, that plaintiff slipped and fell outside on the street or sidewalk rather than inside the store, and that a friend then carried plaintiff inside the store, out of the snow and cold, to await an ambulance.   The credibility of those witnesses was for the jury to determine (see, Gray v. McParland, 255 A.D.2d 359, 679 N.Y.S.2d 683) and, given the conflicting testimony, “the jury reasonably determined that plaintiff had failed to prove that defendant[s] w[ere] negligent” (Bounds v. Western Regional Off Track Betting Corp., 256 A.D.2d 1165, 684 N.Y.S.2d 105;  see, Cone v. Williams [appeal No. 1], 182 A.D.2d 1102, 585 N.Y.S.2d 243, lv. denied 80 N.Y.2d 758, 589 N.Y.S.2d 309, 602 N.E.2d 1125).

 Plaintiff contends that the court erred in admitting in evidence a police record containing plaintiff's criminal history.   The court, however, reversed itself and determined that the police record was inadmissible.   In any event, any error is harmless because plaintiff admitted during cross-examination that he committed the criminal offenses set forth therein.

Plaintiff further contends that the court erred in its charge to the jury.   We disagree.   The jury concluded that defendants were not negligent, and thus they never reached the issue of comparative negligence (see, Prunchak v. Palumbo, 219 A.D.2d 858, 632 N.Y.S.2d 1007).   Plaintiff's remaining contentions concerning the court's charge are not preserved for our review (see, Prunchak v. Palumbo, supra), and are without merit in any event.

 The court properly precluded plaintiff from questioning an insurance representative concerning a payment to plaintiff for medical expenses (see, CPLR 4547;  Sobie v. Katz Constr. Corp., 189 A.D.2d 49, 54, 595 N.Y.S.2d 750).   The court also properly precluded plaintiff from presenting proof of remedial measures taken by defendants following the incident as evidence of negligence (see, Perazone v. Sears, Roebuck & Co., 128 A.D.2d 15, 17, 515 N.Y.S.2d 908;  see also, Cleland v. 60-02 Woodside Corp., 221 A.D.2d 307, 308, 633 N.Y.S.2d 529;  Heyden v. Gallagher El. Co., 94 A.D.2d 936, 937, 464 N.Y.S.2d 887).   We have considered plaintiff's remaining contentions and conclude that they are without merit.

Judgment unanimously affirmed without costs.

MEMORANDUM: