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

498
CA 12-02137
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND MARTOCHE, JJ.


SAMUEL TOMAINO, PLAINTIFF-APPELLANT,

                     V                            MEMORANDUM AND ORDER

THOMAS MAROTTA, JR., DEFENDANT-RESPONDENT.


ATHARI & ASSOCIATES, LLC, UTICA (MO ATHARI OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (RYON D. FLEMING OF COUNSEL),
FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Niagara County
(Richard C. Kloch, Sr., A.J.), entered March 13, 2012. The order,
among other things, denied plaintiff’s motion to set aside the
verdict.

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

     Memorandum: Plaintiff commenced this action alleging that he
sustained injuries as a result of exposure to lead paint in a house
owned by defendant. Following trial, the jury concluded that
defendant was negligent, but that his negligence was not a substantial
factor in causing injury to plaintiff. Supreme Court properly denied
plaintiff’s motion to set aside the verdict as inconsistent. “A jury
finding that a party was negligent but that such negligence was not a
proximate cause of the accident is inconsistent . . . only when the
issues are so inextricably interwoven as to make it logically
impossible to find negligence without also finding proximate cause”
(Skowronski v Mordino, 4 AD3d 782, 783 [internal quotation marks
omitted]; see Ellis v Borzilleri, 41 AD3d 1170, 1170-1171). Here,
defendant’s expert testified that plaintiff was not damaged at all by
his exposure to lead paint. The fact that the jury found that
defendant was negligent but that his negligence was not a substantial
factor in causing plaintiff’s injuries thus is not logically
impossible (see Cunningham v Anderson, 85 AD3d 1370, 1373-1375, lv
dismissed in part and denied in part 17 NY3d 948). The jury was
entitled to conclude that any effects of lead poisoning only minimally
affected plaintiff and that any injuries sustained by him could have
been caused by other factors (see id. at 1375).

Entered:   May 3, 2013                          Frances E. Cafarell
                                                Clerk of the Court
