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

336
CA 10-01348
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


NICKOLAS VIELE, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

LORRAINE VYVERBERG, DEFENDANT-APPELLANT.


HISCOCK & BARCLAY, LLP, ROCHESTER (JOSEPH A. WILSON OF COUNSEL), FOR
DEFENDANT-APPELLANT.

CELLINO & BARNES, P.C., BUFFALO (ELLEN B. STURM OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(William P. Polito, J.), entered March 5, 2010 in a personal injury
action. The judgment awarded plaintiff the sum of $82,440.62 against
defendant.

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

     Memorandum: Defendant appeals from a judgment awarding plaintiff
approximately $82,000 in this premises liability case, following
separate trials on liability and damages. We reject defendant’s
contention that reversal is required on the ground that Supreme Court
erred in omitting from the verdict sheet in the trial on liability a
question whether the premises where plaintiff was injured were
maintained in a reasonably safe condition. “[A]ny alleged error in
the verdict sheet does not warrant reversal inasmuch as ‘no basis
exists to warrant a finding of juror confusion or inconsistency in the
verdict’ ” (Maurer v Tops Mkts., LLC [appeal No. 3], 70 AD3d 1504,
1505; see Williams v Brosnahan, 295 AD2d 971, 974; Szeztaye v LaVacca,
179 AD2d 555, 555-556). We reject defendant’s further contention that
the court erred in failing to include in its charge to the jury at the
trial on liability the issue whether defendant had actual or
constructive notice of the condition that caused plaintiff’s injury.
Rather, the court properly charged the jury that defendant could be
held liable only if the jury found that she created the dangerous or
defective condition. “Although landowners ordinarily must have actual
or constructive notice of a defective condition before they may be
held liable . . ., such notice is not required where the landowner
creates the defective condition” (Merlo v Zimmer, 231 AD2d 952, 953;
see Cook v Rezende, 32 NY2d 596, 599), and here, based on the proof at
the trial on liability, the issue properly before the jury was whether
defendant created the defective condition, not whether she had actual
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                                                         CA 10-01348

or constructive notice thereof.

     Defendant’s contention that the court erred in permitting all or
at least a portion of the testimony of plaintiff’s liability expert at
the trial on liability is likewise without merit. “The determination
whether to permit expert testimony is a mixed question of law and fact
addressed primarily to the discretion of the trial court . . ., and
the court’s determination should not be disturbed absent an abuse of
discretion” (Curtin v J.B. Hunt Transp., Inc. [appeal No. 2], 79 AD3d
1608, 1610 [internal quotation marks omitted]; see Kettles v City of
Rochester, 21 AD3d 1424, 1426). Based on this record, it cannot be
said that the court abused its discretion in permitting plaintiff’s
liability expert to testify at the trial on liability. We have
reviewed defendant’s remaining contentions and conclude that they are
either unpreserved for our review or without merit.




Entered:   April 1, 2011                        Patricia L. Morgan
                                                Clerk of the Court
