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

700
CA 14-01200
PRESENT: SCUDDER, P.J., CARNI, SCONIERS, VALENTINO, AND WHALEN, JJ.


COUNTRY PARK CHILD CARE, INC.,
PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

SMARTDESIGN ARCHITECTURE PLLC AND TODD
AUDSLEY, DEFENDANTS-RESPONDENTS.


PHILLIPS LYTLE LLP, BUFFALO (ALAN J. BOZER OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

HARTER SECREST & EMERY LLP, BUFFALO (DANIEL J. ALTIERI OF COUNSEL),
FOR DEFENDANTS-RESPONDENTS.


     Appeal from a judgment of the Supreme Court, Erie County (John A.
Michalek, J.), entered January 28, 2014. The judgment dismissed the
action upon a verdict of no cause of action.

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

     Memorandum: Plaintiff commenced this action for professional
malpractice against defendants, an architecture firm and one of its
employees, alleging that they were negligent in preparing
architectural drawings for renovations to plaintiff’s daycare
facility. Following a trial, the jury returned a verdict of no cause
of action, and Supreme Court thereafter denied plaintiff’s posttrial
motion pursuant to CPLR 4404 (a) seeking to set aside the verdict.
This appeal ensued, and we affirm.

     Contrary to plaintiff’s contention, the court properly denied its
motion for a directed verdict at the close of proof (see CPLR 4401),
and its posttrial motion to set aside the verdict (see CPLR 4404 [a]).
The parties presented sharply conflicting expert testimony concerning
whether defendants’ actions constituted a deviation from accepted
architectural standards of practice (see generally Wilson v Mary
Imogene Bassett Hosp., 307 AD2d 748, 748–749). Plaintiff was not
entitled to a directed verdict pursuant to CPLR 4401 because,
affording defendants every favorable inference to be drawn from the
evidence, we conclude that there was a rational process by which the
jury could base a finding in their favor (see Szczerbiak v Pilat, 90
NY2d 553, 556; Wolfe v St. Clare’s Hosp. of Schenectady, 57 AD3d 1124,
1126), i.e., that they did not deviate from accepted architectural
standards of practice. We further conclude that the court properly
                                 -2-                           700
                                                         CA 14-01200

refused to set aside the verdict as against the weight of the evidence
because the evidence did not so greatly preponderate in favor of
plaintiff that the verdict could not have been reached on any fair
interpretation of the evidence (see generally Lolik v Big V
Supermarkets, 86 NY2d 744, 746; Wolfe, 57 AD3d at 1126).

     Plaintiff further contends that the court abused its discretion
in denying its motion for a mistrial based on “repeated” references to
settlement demands. There were in fact two such references and,
although plaintiff objected to both, plaintiff requested a mistrial
only with respect to the second reference, and then only as an
alternative to a curative instruction. The court gave an explicit
curative instruction to the jury in each instance, and plaintiff
failed to object further. We thus conclude that plaintiff failed to
preserve this contention for our review (see Vingo v Rosner, 29 AD3d
896, 897, lv denied 8 NY3d 803). In any event, we conclude that the
curative instructions given after both references “were sufficient to
neutralize the prejudicial effect of the error[s]” (Dennis v Capital
Dist. Transp. Auth., 274 AD2d 802, 803).

     Finally, we reject plaintiff’s contention that it was deprived of
a fair trial by the court’s comments and rulings. The court has broad
discretion “ ‘to control the courtroom, rule on the admission of
evidence, elicit and clarify testimony, expedite the proceedings and .
. . admonish counsel and witnesses when necessary’ ” (Messinger v
Mount Sinai Med. Ctr., 15 AD3d 189, 189, lv dismissed 5 NY3d 820), and
here the court’s conduct did not deprive plaintiff of a fair trial.




Entered:   June 19, 2015                        Frances E. Cafarell
                                                Clerk of the Court
