McFadden v. Oneida, Ltd.

• Decision Date: 23 March 2012
• Citation: 941 N.Y.S.2d 417,2012 N.Y. Slip Op. 02208,93 A.D.3d 1309
• Parties: Pamela McFADDEN and William Curran, Plaintiffs–Appellants, v. ONEIDA, LTD., Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 02208
93 A.D.3d 1309
941 N.Y.S.2d 417

Pamela McFADDEN and William Curran, Plaintiffs–Appellants,
v.
ONEIDA, LTD., Defendant–Respondent.

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

March 23, 2012.

[941 N.Y.S.2d 418]

Laduca Law Firm, LP, Rochester (Michael Steinberg of Counsel), for Plaintiffs–Appellants.

Hiscock & Barclay, LLP, Rochester (Robert M. Shaddock of Counsel), for Defendant–Respondent.

PRESENT: CENTRA, J.P., CARNI, LINDLEY, SCONIERS, AND MARTOCHE, JJ.

MEMORANDUM:

[93 A.D.3d 1310] Plaintiffs purport to appeal from a decision “dated” February 4, 2011 denying their motion for, inter alia, judgment notwithstanding the verdict. Although no appeal lies from a mere decision ( see Kuhn v. Kuhn, 129 A.D.2d 967, 514 N.Y.S.2d 284), we nevertheless note that the order was “ entered” February 4, 2011, and we exercise our discretion to treat the notice of appeal as valid and deem the appeal taken from the order ( see generally CPLR 5520[c] ). Plaintiffs were injured when a shelving unit that they were disassembling in defendant's store collapsed. Plaintiffs had purchased six shelving units from defendant's store when it was going out of business. The units were purchased “as is.” The day after the accident, plaintiff William Curran called the store manager on two occasions and left messages, but he never received a return telephone call. Inasmuch as the shelving units were no longer available and Curran did not know who manufactured them, he visited another one of defendant's stores and observed nearly identical shelving units, which he photographed. Curran also purchased additional shelving units from the company that he believed to be the manufacturer of the shelving units in defendant's store and, when he assembled those units, he observed that “everything was the same” as the units that collapsed.

At trial, Supreme Court permitted plaintiffs to assemble a unit that Curran had purchased from the manufacturer and present it to the jury as a demonstrative exhibit. The parties presented the testimony of experts supporting competing theories of the way in which the accident occurred. The jury answered the first question on the verdict sheet, “Was [defendant's] premises reasonably safe?” in the affirmative, and thus the court entered judgment in favor of defendant. Plaintiffs moved for, inter alia, judgment notwithstanding

[941 N.Y.S.2d 419]

the verdict on the grounds that the jurors misapprehended the first question on the verdict sheet and that at least two jurors expressed confusion after the verdict regarding that question. The court denied the motion.

Plaintiffs' contention with respect to the jury charge is not preserved for our review because they failed to object when the court discussed PJI 2:90 prior to charging the jury or at any other...