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Theresa Overhoff, Plaintiff-Appellant v. Bauer Service

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


December 30, 2011

THERESA OVERHOFF, PLAINTIFF-APPELLANT,
v.
BAUER SERVICE, INC., DEFENDANT-RESPONDENT.

Appeal from a judgment of the Supreme Court, Erie County (Paula L. Feroleto, J.), entered December 9, 2010 in a personal injury action.

Overhoff v Bauer Serv., Inc.

Decided on December 30, 2011

Appellate Division, Fourth Department

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: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.

(APPEAL NO. 1.)

The judgment, entered upon a jury verdict in favor of defendant and against plaintiff, awarded defendant costs and disbursements.

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

Memorandum: Plaintiff commenced this action seeking damages for injuries that she sustained when she fell upon stepping in a gap in the concrete at a service station owned and operated by defendant. The jury returned a verdict of no cause of action, and Supreme Court denied plaintiff's post-trial motion to set aside the verdict as against the weight of the evidence and for a new trial. Contrary to plaintiff's contention, the verdict is not against the weight of the evidence, i.e., it cannot be said that "the preponderance of the evidence in favor of [plaintiff] is so great that the verdict could not have been reached upon any fair interpretation of the evidence" (Dannick v County of Onondaga, 191 AD2d 963, 964; see generally Lolik v Big V Supermarkets, 86 NY2d 744, 746).

Entered: December 30, 2011

Frances E. Cafarell Clerk of the Court

20111230

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