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

1291
CA 11-01332
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.


THERESA OVERHOFF, PLAINTIFF-APPELLANT,

                      V                           MEMORANDUM AND ORDER

BAUER SERVICE, INC., DEFENDANT-RESPONDENT.
(APPEAL NO. 1.)


DUKE, HOLZMAN, PHOTIADIS & GRESENS LLP, BUFFALO (ELIZABETH A. KRAENGEL
OF COUNSEL), FOR PLAINTIFF-APPELLANT.

BROWN & KELLY, LLP, BUFFALO (RYAN J. MILLS OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Paula
L. Feroleto, J.), entered December 9, 2010 in a personal injury
action. The judgment, entered upon a jury verdict in favor of
defendant and against plaintiff, awarded defendant costs and
disbursements.

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

     Memorandum: Plaintiff commenced this action seeking damages for
injuries that she sustained when she fell upon stepping in a gap in
the concrete at a service station owned and operated by defendant.
The jury returned a verdict of no cause of action, and Supreme Court
denied plaintiff’s post-trial motion to set aside the verdict as
against the weight of the evidence and for a new trial. Contrary to
plaintiff’s contention, the verdict is not against the weight of the
evidence, i.e., it cannot be said that “the preponderance of the
evidence in favor of [plaintiff] is so great that the verdict could
not have been reached upon any fair interpretation of the evidence”
(Dannick v County of Onondaga, 191 AD2d 963, 964; see generally Lolik
v Big V Supermarkets, 86 NY2d 744, 746).




Entered:    December 30, 2011                   Frances E. Cafarell
                                                Clerk of the Court
