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Danieu v. 109 South Union St.

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


November 21, 2008

PATRICK DANIEU AND EILEEN DANIEU, PLAINTIFFS-APPELLANTS,
v.
109 SOUTH UNION ST., LLC AND FLAUM MANAGEMENT COMPANY, INC., DEFENDANTS-RESPONDENTS. (APPEAL NO. 1.)

Appeal from a judgment of the Supreme Court, Erie County (Paula L. Feroleto, J.), entered August 17, 2007 in a personal injury action. The judgment, among other things, dismissed the amended complaint following a jury trial.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: SCUDDER, P.J., MARTOCHE, CENTRA, LUNN, AND GORSKI, JJ.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum

Plaintiffs commenced this action seeking damages for injuries sustained by Patrick Danieu (plaintiff) when he fell on stairs after the handrailing came loose from the wall in a building owned by defendant 109 South Union St., LLC and managed by defendant Flaum Management Company, Inc. Contrary to plaintiffs' contention, Supreme Court properly refused to instruct the jury that, if it found that defendants created an unsafe condition, then it may also find that defendants were negligent. That theory was not supported by the evidence, and thus the court properly determined that such an instruction was inappropriate (see generally Deshommes v Hussain, 47 AD3d 869; Sangiovanni v Koloski, 31 AD3d 422, 422-423; D'Alessandro v Eastman Kodak Co., 24 AD3d 1227, 1228, lv denied 6 NY3d 712). The individual responsible for building maintenance testified for defendants that he did not make any repairs to the handrails in any stairway prior to plaintiff's fall, and that testimony was uncontroverted by plaintiffs. Contrary to plaintiffs' further contention, because there is no evidence " that substantial justice has not been done' " (Stevens v Atwal [appeal No. 2], 30 AD3d 993, 994), the court also properly denied plaintiff's post-trial motion to set aside the verdict and for a new trial in the interest of justice.

20081121

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