SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

700 

CA 14-01200 

PRESENT: SCUDDER, P.J., CARNI, SCONIERS, VALENTINO, AND WHALEN, JJ. 

 

COUNTRY PARK CHILD CARE, INC., 

PLAINTIFF-APPELLANT, 

V MEMORANDUM AND ORDER

SMARTDESIGN ARCHITECTURE PLLC AND TODD 

AUDSLEY, DEFENDANTS-RESPONDENTS. 

PHILLIPS LYTLE LLP, BUFFALO (ALAN J. BOZER OF COUNSEL), FOR

PLAINTIFF-APPELLANT.

HARTER SECREST & EMERY LLP, BUFFALO (DANIEL J. ALTIERI OF COUNSEL),

FOR DEFENDANTS-RESPONDENTS. 

 

Appeal from a judgment of the Supreme Court, Erie County (John A.

Michalek, J.), entered January 28, 2014. The judgment dismissed the

action upon a verdict of no cause of action. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed without costs. 

Memorandum: Plaintiff commenced this action for professional

malpractice against defendants, an architecture firm and one of its

employees, alleging that they were negligent in preparing

architectural drawings for renovations to plaintiff’s daycare

facility. Following a trial, the jury returned a verdict of no cause

of action, and Supreme Court thereafter denied plaintiff’s posttrial

motion pursuant to CPLR 4404 (a) seeking to set aside the verdict. 

This appeal ensued, and we affirm. 

Contrary to plaintiff’s contention, the court properly denied its

motion for a directed verdict at the close of proof (see CPLR 4401),

and its posttrial motion to set aside the verdict (see CPLR 4404 [a]). 

The parties presented sharply conflicting expert testimony concerning

whether defendants’ actions constituted a deviation from accepted

architectural standards of practice (see generally Wilson v Mary

Imogene Bassett Hosp., 307 AD2d 748, 748–749). Plaintiff was not

entitled to a directed verdict pursuant to CPLR 4401 because,

affording defendants every favorable inference to be drawn from the

evidence, we conclude that there was a rational process by which the

jury could base a finding in their favor (see Szczerbiak v Pilat, 90

NY2d 553, 556; Wolfe v St. Clare’s Hosp. of Schenectady, 57 AD3d 1124,

1126), i.e., that they did not deviate from accepted architectural

standards of practice. We further conclude that the court properly
-2- 700 

CA 14-01200 

refused to set aside the verdict as against the weight of the evidence

because the evidence did not so greatly preponderate in favor of

plaintiff that the verdict could not have been reached on any fair

interpretation of the evidence (see generally Lolik v Big V

Supermarkets, 86 NY2d 744, 746; Wolfe, 57 AD3d at 1126).

Plaintiff further contends that the court abused its discretion

in denying its motion for a mistrial based on “repeated” references to

settlement demands. There were in fact two such references and,

although plaintiff objected to both, plaintiff requested a mistrial

only with respect to the second reference, and then only as an

alternative to a curative instruction. The court gave an explicit

curative instruction to the jury in each instance, and plaintiff

failed to object further. We thus conclude that plaintiff failed to

preserve this contention for our review (see Vingo v Rosner, 29 AD3d

896, 897, lv denied 8 NY3d 803). In any event, we conclude that the

curative instructions given after both references “were sufficient to

neutralize the prejudicial effect of the error[s]” (Dennis v Capital

Dist. Transp. Auth., 274 AD2d 802, 803).

Finally, we reject plaintiff’s contention that it was deprived of

a fair trial by the court’s comments and rulings. The court has broad

discretion “ ‘to control the courtroom, rule on the admission of

evidence, elicit and clarify testimony, expedite the proceedings and .

. . admonish counsel and witnesses when necessary’ ” (Messinger v

Mount Sinai Med. Ctr., 15 AD3d 189, 189, lv dismissed 5 NY3d 820), and

here the court’s conduct did not deprive plaintiff of a fair trial.

Entered: June 19, 2015 Frances E. Cafarell

Clerk of the Court