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

209
CA 10-01812
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


STEPHEN MURDOCH, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

NIAGARA FALLS BRIDGE COMMISSION,
DEFENDANT-RESPONDENT.


KANTOR & GODWIN, PLLC, WILLIAMSVILLE (STEVEN L. KANTOR OF COUNSEL),
FOR PLAINTIFF-APPELLANT.

MORENUS, CONWAY, GOREN & BRANDMAN, BUFFALO (ROBERT E. GALLAGHER, JR.,
OF COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from a judgment and order (one paper) of the Supreme
Court, Niagara County (Richard C. Kloch, Sr., A.J.), entered December
16, 2009 in a personal injury action. The judgment and order, upon a
jury verdict, dismissed the complaint in its entirety.

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

     Memorandum: Plaintiff commenced this Labor Law and common-law
negligence action seeking damages for injuries he sustained while
repairing a bridge owned by defendant. Supreme Court previously
granted defendant’s motion for summary judgment dismissing the
complaint insofar as it alleged the violation of Labor Law § 240 (1)
and § 241 (6) and, after the case proceeded to a bifurcated trial on
liability on those parts of the complaint alleging the violation of
Labor Law § 200 and alleging common-law negligence, the jury returned
a verdict in favor of defendant. Plaintiff failed to preserve for our
review his contention that the verdict is against the weight of the
evidence inasmuch as he failed to make a timely motion to set aside
the verdict on that ground (see Homan v Herzig [appeal No. 2], 55 AD3d
1413, 1413-1414; Givens v Rochester City School Dist., 294 AD2d 898,
899) and, in any event, that contention lacks merit (see generally
Lolik v Big V Supermarkets, 86 NY2d 744, 746; Ruddock v Happell, 307
AD2d 719, 720; Jaquay v Avery, 244 AD2d 730, 730-731). Plaintiff
likewise failed to preserve for our review his contention that the
references by defendant to plaintiff’s employer during the trial
violated the court’s ruling in limine, inasmuch as he did not object
to any such reference by defendant’s attorney (see CPLR 5501 [a] [3]).

     We reject the further contention of plaintiff that he is entitled
to a new trial because defendant utilized certain undisclosed safety
                                 -2-                           209
                                                         CA 10-01812

documents, which were not received in evidence, while cross-examining
plaintiff’s safety expert. The court gave plaintiff the option of
moving for a mistrial, but plaintiff instead requested a curative
instruction. The court then gave a prompt curative instruction, which
the jury is presumed to have followed, thus alleviating any prejudice
to plaintiff resulting from defendant’s brief references to the safety
documents (see Bethmann v Widewaters Group, 306 AD2d 923, 924).

     We agree with plaintiff, however, that the court erred in
refusing to instruct the jury that the violation of a regulation
promulgated by the Occupational Safety and Health Administration
(OSHA) may constitute evidence of negligence (see PJI 2:29; see
generally Cruz v Long Is. R.R. Co., 22 AD3d 451, 453-454, lv denied 6
NY3d 703; Landry v General Motors Corp., Cent. Foundry Div., 210 AD2d
898). Plaintiff asserted claims based on defendant’s violation of
OSHA regulations in his bill of particulars, which was thereafter
twice supplemented, and plaintiff’s expert safety consultant testified
with respect to the applicability of specific OSHA regulations to
plaintiff’s accident. Nonetheless, we conclude that reversal is not
required based on the court’s error (see CPLR 2002). Given the jury’s
determination that defendant did not have the authority to control the
activity that caused plaintiff’s injury, a proper charge concerning
the effect of defendant’s alleged regulatory violations would not have
changed the jury’s verdict (see generally Stalikas v United Materials,
306 AD2d 810, 811, affd 100 NY2d 626).




Entered:   February 18, 2011                    Patricia L. Morgan
                                                Clerk of the Court
