Meizlik v. Benderson Development Co., Inc.
| Decision Date | 16 January 1976 |
| Citation | 51 A.D.2d 676,378 N.Y.S.2d 533 |
| Parties | Bernard MEIZLIK, d/b/a Suburban Tailor Shop, et al., Appellants, v. BENDERSON DEVELOPMENT CO., INC., et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Thielman & Lalime, Phillip A. Thielman, Buffalo, for appellants.
Dixon, DeMarie & Szymoniak, Joseph DeMarie, Buffalo, for Benderson Development.
Adams, Brown, Starrett & Maloney, Daniel T. Roach, Buffalo, for Wayside Nursery.
Before MARSH, P.J., and MOULE, CARDAMONE, SIMONS and MAHONEY, JJ.
Plaintiffs and defendant Wayside Nursery, Inc. (Wayside) were tenants of defendant Benderson Development Co., Inc. (Benderson) in a commercial building in the Town of Amherst. On November 3, 1968 the structure was destroyed by fire. Plaintiffs brought this action alleging negligence on the part of Benderson in failing properly to secure a shed at the rear of the building so at to prevent childern from starting paper fires in the shed and on the part of Wayside in storing swimming pool equipment, garden supplies and Christmas decorations in its portion of the building in violation of local fire ordinances. The case was tried before a jury in Supreme Court, Erie County, and at the close of the plaintiffs' proof their cause of action against Wayside was dismissed. The jury returned a verdict in favor of plaintiffs against Benderson, but the court set it aside on the ground that there was insufficient proof that Benderson's failure to enclose the shed was the proximate cause of the fire.
The appendix method was used on this appeal and, consequently, we do not have the entire record before us. The portion that we do have indicates that the court's dismissal as to Wayside was proper. Not only was there no evidence of a causal relationship between the items stored by Wayside and the fire, but there was no proof that those items were flammable.
In considering whether the court properly set aside the verdict, we must view the evidence before us most favorably to the plaintiffs and may disturb the jury's finding only where it can be found that the jury could not have reached the verdict it did 'on any fair interpretation of the evidence'. (Lee v. Lesniak, 40 A.D.2d 756, 337 N.Y.S.2d 791). The evidence shows that the fire was started by children playing in the shed; that children had ignited small fires in the shed on previous occasions; that these prior incidents had been called to Benderson's attention and that Benderson had...
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