Tolas v. Fiumano

• Decision Date: 11 March 2002
• Docket Number: 01-00193,2
• Parties: Charles R. Tolas, et al., appellants, v Patrick Fiumano, et al., respondents. 2001-00193 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT Argued -
• Court: New York Supreme Court — Appellate Division

Charles R. Tolas, et al., appellants, v Patrick Fiumano, et al., respondents.

2001-00193

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT

Argued - February 7, 2002

Decided on March 11, 2002

Simonson & Cohen, P.C., Staten Island, N.Y. (John Z. Marangos of counsel), for appellants.

Zachary & Zachary, P.C., Staten Island, N.Y. (Deborah C. Zachary of counsel), for respondents.

DECISION & ORDER

NANCY E. SMITH, J.P.

GLORIA GOLDSTEIN

LEO F. McGINITY

HOWARD MILLER, JJ.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Richmond County (Ponterio, J.), dated December 12, 2000, which, upon a jury verdict on the issue of liability finding the injured plaintiff 70% at fault in the happening of the accident and the defendants 30% at fault, granted the defendants' motion pursuant to CPLR 4404 to set aside the verdict on the ground that it was not supported by legally sufficient evidence and to dismiss the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is denied, the complaint and the verdict are reinstated, and the matter is remitted to the Supreme Court, Richmond County, for a trial on the issue of damages.

A jury verdict will be set aside as legally insufficient only if there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury on the basis of the evidence presented at trial (see, Cohen v Hallmark Cards, 45 N.Y.2d 493; Nicastro v Park, 113 A.D.2d 129). In this case, there is sufficient evidence to support the jury's determination that the defendants created the hazardous condition which proximately caused the accident (see, Bermeo v Rejai, 282 A.D.2d 700; Sheridan v Grigos, 277 A.D.2d 217). Accordingly, the Supreme Court erred in granting the defendants' motion to set aside the verdict and to dismiss the complaint (see, Roca v Gerardi, 243 A.D.2d 616; Higbie Constr. v IPI Indus., 159 A.D.2d 558).

SMITH, J.P., GOLDSTEIN, McGINITY and H. MILLER, JJ., concur.