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

233
CA 15-00896
PRESENT: WHALEN, P.J., SMITH, CARNI, NEMOYER, AND CURRAN, JJ.


DAVID MADDEX AND YVONNE MADDEX,
PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

E.E. AUSTIN & SON, INC., DEFENDANT-RESPONDENT.


COLLINS & COLLINS ATTORNEYS, LLC, BUFFALO (A. PETER SNODGRASS OF
COUNSEL), FOR PLAINTIFFS-APPELLANTS.

GOLDBERG SEGALLA LLP, BUFFALO (KENNETH A. PATRICIA OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (John A.
Michalek, J.), entered March 18, 2015. The order denied the motion of
plaintiffs for judgment pursuant to CPLR 4401 and for judgment
pursuant to CPLR 4404 (a).

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

     Memorandum: In this Labor Law § 240 (1) action, plaintiffs
sought a directed verdict pursuant to CPLR 4401 at the close of proof,
asserting that they were entitled to a determination as a matter of
law that defendant violated section 240 (1) by failing to provide a
proper safety device to David Maddex (plaintiff). Plaintiffs moved
for the same relief pursuant to CPLR 4404 (a) following a jury verdict
in defendant’s favor and, in the alternative for an order directing a
new trial on the ground that the verdict is against the weight of the
evidence. We conclude that Supreme Court properly denied the motions.

     Plaintiff was injured when he and two coworkers attempted to
unload a gang box at the work site from a “cube van.” Plaintiff
remained in the bed of the van and held a handle of the gang box,
acting as a counterweight, while the coworkers lowered the
approximately 500-pound gang box toward the ground, approximately five
feet below the bed of the van. The evidence established that the
force of gravity caused the gang box to slide to the pavement below
and flip over onto its top. Before plaintiff could release the
handle, he was propelled out of the van, over the gang box, and onto
the pavement approximately 10 to 15 feet from the van. Plaintiffs
sought a directed verdict at the close of proof on the grounds that
plaintiff was injured as a result of the application of the force of
gravity and that defendant failed to provide any safety device as
                                 -2-                           233
                                                         CA 15-00896

required by section 240 (1). Although we agree with plaintiffs that
the accident falls within the purview of section 240 (1) as a gravity-
related accident (see Runner v New York Stock Exch., Inc., 13 NY3d
599, 603-604), we conclude that the court properly determined, viewing
the evidence in the light most favorable to defendant, that there was
a rational basis by which the jury could find in favor of defendant
(see Brown v Concord Nurseries, Inc. [appeal No. 2], 53 AD3d 1067,
1067-1068). Indeed, we note that the evidence introduced by
plaintiffs at trial presented conflicting views as to the availability
of a safety device and, under such circumstances, there was no basis
for the court to grant plaintiffs a directed verdict pursuant to CPLR
4401. Likewise, the court properly denied that part of plaintiffs’
motion seeking judgment notwithstanding the verdict pursuant to CPLR
4404 (a).

     We further conclude that the court properly denied that part of
plaintiffs’ motion alleging that the verdict is against the weight of
the evidence. It is well settled that “[a] verdict rendered in favor
of a defendant may be successfully challenged as against the weight of
the evidence only when the evidence so preponderated in favor of the
plaintiff that it could not have been reached on any fair
interpretation of the evidence” (Sauter v Calabretta, 103 AD3d 1220,
1220 [internal quotation marks omitted]), and that is not the case
here. Furthermore, a court should not substitute its judgment for
that of the jury where, as here, the verdict is one that could have
been rendered by reasonable people upon conflicting evidence, and
great deference is accorded to the jury’s credibility determinations
(see id.).




Entered:   March 25, 2016                       Frances E. Cafarell
                                                Clerk of the Court
