                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 12, 2016                      521418
________________________________

JOHN J. MEREAU et al.,
                    Appellants,
      v

PETER M. PRENTICE, Doing
   Business as PRENTICE
   CONSTRUCTION, et al.,
                    Defendants,             MEMORANDUM AND ORDER
      and

FREEDOM MECHANICALS, LLC, Doing
   Business as CORNERSTONE
   SERVICES, Named Herein as
   DONALD J. COLBERT II, Doing
   Business as CORNERSTONE
   SERVICES,
                    Respondent.
________________________________


Calendar Date:   March 24, 2016

Before:   McCarthy, J.P., Egan Jr., Rose, Devine and Clark, JJ.

                             __________


      Robert E. Lahm PLLC, Syracuse (Robert E. Lahm of counsel),
for appellants.

      Santacrose & Frary, Albany (Keith M. Frary of counsel), for
respondent.

                             __________


Devine, J.

      Appeals (1) from a judgment of the Supreme Court (Demarest,
J.), entered March 9, 2015 in St. Lawrence County, upon a verdict
rendered in favor of defendant Freedom Mechanicals, LLC, and (2)
                              -2-                521418

from an order of said court, entered April 24, 2015 in St.
Lawrence County, which denied plaintiffs' motion to set aside the
verdict.

      Plaintiffs contracted with defendant Peter M. Prentice to
construct their home in the Town of Louisville, St. Lawrence
County. Prentice subcontracted aspects of the work to, among
others, defendant Freedom Mechanicals, LLC (hereinafter
defendant). On January 5, 2011, plaintiff John J. Mereau visited
the construction site, fell down an open elevator shaft on the
second floor of the unfinished residence and sustained permanent
and severe injuries.

      Mereau and, derivatively, his wife commenced two negligence
actions against the various defendants that were subsequently
consolidated. The case proceeded to trial against Prentice and
defendant, although only the claims involving defendant reached
the jury, which returned a verdict in its favor. Plaintiffs
thereafter moved to set aside the verdict, arguing that it was
not supported by credible evidence and that Supreme Court erred
in refusing to give a missing witness charge with regard to an
employee of defendant who did not testify. Supreme Court denied
the motion. Plaintiffs appeal from both the judgment rendered on
the verdict and the order denying the postverdict motion.

      We affirm. Plaintiffs assert that the verdict was against
the weight of the evidence presented at trial, pointing to proof
suggesting that an employee of defendant was responsible for
removing the wooden barrier. In assessing whether plaintiffs are
correct, the relevant question is whether "the evidence so
preponderate[d] in [plaintiffs'] favor . . . that [the verdict]
could not have been reached on any fair interpretation of the
evidence" (Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]
[internal quotation marks and citation omitted]; see Grassi v
Ulrich, 87 NY2d 954, 956 [1996]; Longtin v Miller, 133 AD3d 939,
940 [2015]). Our review of the trial evidence does not reveal
such to be the case.

      Prentice testified that he inspected the construction site
every day and the barrier blocking the opening to the elevator
shaft was in place on the morning of the accident. Defendant was
                              -3-                521418

responsible for duct work that ran through the elevator shaft,
and Prentice testified that one of defendant's employees, Frank
Trombley, arrived at the site around 10:00 a.m. with the stated
intention of swapping out undersized ductwork that had previously
been installed. A worker employed by Prentice agreed that one of
defendant's employees was at the site that morning. Prentice
found the barrier missing from the shaft opening after Mereau's
accident and, while he did not see anyone remove the barrier,
Prentice speculated that Trombley had done so in order to replace
the ductwork.

      The trial evidence was far from conclusive, however, in
establishing that anyone employed by defendant was at the site on
the morning of the accident. Portions of Trombley's deposition
testimony were read into the record, and he stated that no one
employed by defendant was working at the construction site on the
day of the accident. Defendant's principal confirmed that
Trombley was working elsewhere that day, and business records
corroborating his assertions were entered into evidence. Other
witnesses also called the accounts of Prentice and his employee
into question. Defendant Eric Young, another subcontractor on
the project who had successfully moved for summary judgment
dismissing the claims against him prior to trial, testified that
he was working on the second floor on the day of the accident and
did not see or hear any of defendant's employees. Young also
undercut Prentice's claim that Trombley was changing the ductwork
in the elevator shaft, testifying that Prentice had authorized
Young to work in the shaft at 8:00 a.m. on the day of the
accident because the ductwork had been completed. The remaining
witnesses either did not see, or could not confirm seeing,
Trombley or another employee of defendant at the construction
site on the day of the accident. A significant array of evidence
therefore suggested that neither Trombley nor any of defendant's
other employees were present to remove the barrier in the leadup
to Mereau's accident. The jury chose to credit this proof and,
deferring to its assessments of credibility, we cannot say that
the verdict was against the weight of the evidence (see Minutolo
v County of Broome, 130 AD3d 1202, 1203 [2015]; Johnson v
Ingalls, 95 AD3d 1398, 1399 [2012]; Perry v Wine & Roses, Inc.,
40 AD3d 1299, 1300 [2007]).
                                -4-                  521418

      As a final matter, plaintiffs argue that Supreme Court
erred in declining to give a missing witness charge with regard
to Trombley. Plaintiffs subpoenaed Trombley but did not call him
to the stand, and both plaintiffs and defendant read certain
portions of his deposition testimony into the record.1 Defendant
also chose not to call Trombley as a witness, and plaintiffs
declined the opportunity to submit any further proof in rebuttal.
Plaintiffs instead waited until after the close of proof to
request a missing witness charge, thereby depriving defendant of
"any opportunity to account for [Trombley's] absence, argue that
[it] did not have the requisite control over him, or attempt to
procure his appearance" (Herman v Moore, 134 AD3d 543, 545
[2015]; see People v Gonzalez, 68 NY2d 424, 427-428 [1986];
Popolizio v County of Schenectady, 62 AD3d 1181, 1184 [2009]).
Inasmuch as plaintiffs' request was untimely and would have
resulted in undue surprise to defendant if granted, its rejection
by Supreme Court was not an abuse of discretion (see People v
Alexander, 127 AD3d 1429, 1433 [2015], lv denied 25 NY3d 1197
[2015]; People v Turner, 73 AD3d 1282, 1283-1284 [2010], lv
denied 15 NY3d 896 [2010]; Popolizio v County of Schenectady, 62
AD3d at 1184; cf. R.T. Cornell Pharmacy v Guzzo, 135 AD2d 1000,
1002 [1987], lv dismissed 71 NY2d 928 [1988]).

        McCarthy, J.P., Egan Jr., Rose and Clark, JJ., concur.


      ORDERED that the judgment and order are affirmed, with
costs.



                               ENTER:




                               Robert D. Mayberger
                               Clerk of the Court




    1
        The record is silent as to why Trombley did not testify
in person, and Supreme Court acknowledged during jury
deliberations that it "really [did not] know" why he was absent.
