                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 7, 2016                     521619
________________________________

MARK JOHNSTONE et al.,
                    Respondents,
      v
                                            MEMORANDUM AND ORDER
FIRST CLASS MANAGEMENT OF
   NEW YORK, LLC,
                    Appellant.
________________________________


Calendar Date:   February 16, 2016

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

                             __________


     James W. Borkowski, White Plains, for appellant.

     Gary Waldman, Monticello, for respondents.

                             __________


McCarthy, J.P.

      Appeal from an order of the Supreme Court (Schick, J.),
entered October 17, 2014 in Sullivan County, which granted
plaintiffs' motion to set aside a verdict in favor of defendant
and ordered a new trial.

      Plaintiff Mark Johnstone and, derivatively, his spouse
commenced this personal injury action based on allegations that
Johnstone had fallen down a set of stairs as the result of the
negligent maintenance of a rental property, which was owned by
defendant. The action proceeded to trial solely on the issue of
liability, after which the jury returned a verdict that defendant
was not liable for Johnstone's injuries, based solely on its
determination that defendant had not been negligent in
maintaining the premises. Thereafter, Supreme Court granted
plaintiffs' motion pursuant to CPLR 4404 (a) to set aside the
                              -2-                 521619

verdict, and it ordered a new trial.   Defendant appeals.

      We affirm. Initially, Supreme Court did not err in
deciding plaintiffs' motion to set aside the verdict without the
aid of the trial transcript. The case did not involve complex
legal or factual issues, the trial was brief and the same judge
that presided over the trial determined plaintiffs' motion. In
light of these facts, the absence of a trial transcript did not
preclude the court from meaningful review (see McPherson v City
of New York, 122 AD3d 809, 810 [2014]).

      A court may set aside a verdict as against the weight of
the evidence and order a new trial where "the evidence so
preponderate[d] in favor of the [moving party] that [the verdict]
could not have been reached on any fair interpretation of the
evidence" (Grassi v Ulrich, 87 NY2d 954, 956 [1996] [internal
quotation marks and citations omitted]; see Longtin v Miller, 133
AD3d 939, 940 [2015]). The evidence that defendant had
negligently maintained the stairway on its property was
overwhelming. A week before the alleged accident, a building
inspector had visited defendant's premises and, as to the
stairway, discovered loose steps and a railing that was only
partly fastened. After the building inspector completed his
inspection, he conveyed his findings to defendant.
Johnstone testified that the cause of his fall was a loose step
that pitched him forward and then a railing that swung away as he
attempted to grab it to stop his fall. Pictures taken shortly
after the incident reveal that the stairway railing was not
secured.

      Accordingly, the building inspector's testimony,
Johnstone's testimony and the pictures of the stairway
established that the stairway was a dangerous condition that
remained unameliorated even after defendant had notice thereof,
and no evidence was introduced that could fairly support a
contrary conclusion. In light of the fact that the verdict was
based solely on the jury's conclusion that defendant was not
negligent in maintaining the premises, Supreme Court properly
granted plaintiffs' motion to set aside the verdict and ordered a
new trial (see Killon v Parrotta, 98 AD3d 828, 829 [2012]; Husak
v 45th Ave. Hous. Co., 52 AD3d 782, 784 [2008]; Bun Sin Lee v
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Pathmark Stores, 1 AD3d 219, 219-220 [2003]; Crocetto v Alvarez,
185 AD2d 541, 542 [1992]).

     Egan Jr., Lynch, Devine and Clark, JJ., concur.



     ORDERED that the order is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
