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

545
CA 11-01318
PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, AND MARTOCHE, JJ.


NORA OSMON, PLAINTIFF-RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ISKALO DEVELOPMENT CORPORATION, DEFENDANT,
AND H&M PLUMBING & MECHANICAL CONTRACTING, INC.,
DEFENDANT-APPELLANT.


GOLDBERG SEGALLA LLP, ALBANY (MATTHEW S. LERNER OF COUNSEL), FOR
DEFENDANT-APPELLANT.

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Frank A.
Sedita, Jr., J.), entered September 23, 2010 in a personal injury
action. The order, insofar as appealed from, granted that part of the
motion of plaintiff to set aside the jury verdict with respect to
defendant H&M Plumbing & Mechanical Contracting, Inc.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs, the post-trial motion
is denied in its entirety and the verdict with respect to defendant
H&M Plumbing & Mechanical Contracting, Inc. is reinstated.

     Memorandum: Defendant H&M Plumbing & Mechanical Contracting,
Inc. (H&M) appeals from an order granting that part of plaintiff’s
post-trial motion to set aside a jury verdict in favor of H&M. We
reverse the order insofar as appealed from, deny the post-trial motion
in its entirety and reinstate the jury verdict with respect to H&M.
Plaintiff commenced this action seeking damages for injuries she
sustained when she tripped over a ladder at property owned by
defendant Iskalo Development Corporation (Iskalo). Iskalo entered
into a contract with H&M to perform plumbing work on the premises. It
is undisputed that plaintiff tripped over a ladder owned by H&M, but
the jury’s conclusion that H&M was not negligent is supported by the
record. Although the evidence established that the ladder was marked
as belonging to H&M, it was unclear who placed the ladder in the
hallway where plaintiff fell. The jury was entitled to determine that
an employee of H&M did not place the ladder in the hallway or that the
ladder’s brief and slight incursion into the hallway was not a
dangerous condition. Thus, we conclude that the jury’s determination
is one that reasonably could have been rendered based on the evidence
                                 -2-                           545
                                                         CA 11-01318

presented at trial (see Ruddock v Happell, 307 AD2d 719, 720-721).




Entered:   April 20, 2012                      Frances E. Cafarell
                                               Clerk of the Court
