NORA OSMON PLAINTIFF RESPONDENT v. ISKALO DEVELOPMENT CORPORATION DEFENDANT AND PLUMBING MECHANICAL CONTRACTING INC DEFENDANT APPELLANT

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

NORA OSMON, PLAINTIFF–RESPONDENT, v. ISKALO DEVELOPMENT CORPORATION, DEFENDANT, AND H & M PLUMBING & MECHANICAL CONTRACTING, INC., DEFENDANT–APPELLANT.

CA 11–01318

Decided: April 20, 2012

PRESENT:  CENTRA, J.P., PERADOTTO, SCONIERS, AND MARTOCHE, JJ. GOLDBERG SEGALLA LLP, ALBANY (MATTHEW S. LERNER OF COUNSEL), FOR DEFENDANT–APPELLANT. LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR PLAINTIFF–RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, the post-trial motion is denied in its entirety and the verdict with respect to defendant H & M Plumbing & Mechanical Contracting, Inc. is reinstated.

Memorandum:  Defendant H & M Plumbing & Mechanical Contracting, Inc. (H & M) appeals from an order granting that part of plaintiff's post-trial motion to set aside a jury verdict in favor of H & M. We reverse the order insofar as appealed from, deny the post-trial motion in its entirety and reinstate the jury verdict with respect to H & M. Plaintiff commenced this action seeking damages for injuries she sustained when she tripped over a ladder at property owned by defendant Iskalo Development Corporation (Iskalo).   Iskalo entered into a contract with H & M to perform plumbing work on the premises.   It is undisputed that plaintiff tripped over a ladder owned by H & M, but the jury's conclusion that H & M was not negligent is supported by the record.   Although the evidence established that the ladder was marked as belonging to H & M, it was unclear who placed the ladder in the hallway where plaintiff fell.   The jury was entitled to determine that an employee of H & M did not place the ladder in the hallway or that the ladder's brief and slight incursion into the hallway was not a dangerous condition.   Thus, we conclude that the jury's determination is one that reasonably could have been rendered based on the evidence

presented at trial (see Ruddock v. Happell, 307 A.D.2d 719, 720–721).

Frances E. Cafarell

Clerk of the Court