State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: May 12, 2016 521418 

________________________________

JOHN J. MEREAU et al.,

Appellants,

v

PETER M. PRENTICE, Doing

Business as PRENTICE

CONSTRUCTION, et al.,

Defendants, MEMORANDUM AND ORDER

and

FREEDOM MECHANICALS, LLC, Doing

Business as CORNERSTONE

SERVICES, Named Herein as

DONALD J. COLBERT II, Doing

Business as CORNERSTONE

SERVICES,

Respondent.

________________________________

Calendar Date: March 24, 2016

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

__________

Robert E. Lahm PLLC, Syracuse (Robert E. Lahm of counsel),

for appellants.

Santacrose & Frary, Albany (Keith M. Frary of counsel), for

respondent.

__________

Devine, J.

Appeals (1) from a judgment of the Supreme Court (Demarest,

J.), entered March 9, 2015 in St. Lawrence County, upon a verdict

rendered in favor of defendant Freedom Mechanicals, LLC, and (2)
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from an order of said court, entered April 24, 2015 in St.

Lawrence County, which denied plaintiffs' motion to set aside the

verdict.

Plaintiffs contracted with defendant Peter M. Prentice to

construct their home in the Town of Louisville, St. Lawrence

County. Prentice subcontracted aspects of the work to, among

others, defendant Freedom Mechanicals, LLC (hereinafter

defendant). On January 5, 2011, plaintiff John J. Mereau visited

the construction site, fell down an open elevator shaft on the

second floor of the unfinished residence and sustained permanent

and severe injuries. 

Mereau and, derivatively, his wife commenced two negligence

actions against the various defendants that were subsequently

consolidated. The case proceeded to trial against Prentice and

defendant, although only the claims involving defendant reached

the jury, which returned a verdict in its favor. Plaintiffs

thereafter moved to set aside the verdict, arguing that it was

not supported by credible evidence and that Supreme Court erred

in refusing to give a missing witness charge with regard to an

employee of defendant who did not testify. Supreme Court denied

the motion. Plaintiffs appeal from both the judgment rendered on

the verdict and the order denying the postverdict motion.

We affirm. Plaintiffs assert that the verdict was against

the weight of the evidence presented at trial, pointing to proof

suggesting that an employee of defendant was responsible for

removing the wooden barrier. In assessing whether plaintiffs are

correct, the relevant question is whether "the evidence so

preponderate[d] in [plaintiffs'] favor . . . that [the verdict]

could not have been reached on any fair interpretation of the

evidence" (Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]

[internal quotation marks and citation omitted]; see Grassi v

Ulrich, 87 NY2d 954, 956 [1996]; Longtin v Miller, 133 AD3d 939,

940 [2015]). Our review of the trial evidence does not reveal

such to be the case. 

Prentice testified that he inspected the construction site

every day and the barrier blocking the opening to the elevator

shaft was in place on the morning of the accident. Defendant was
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responsible for duct work that ran through the elevator shaft,

and Prentice testified that one of defendant's employees, Frank

Trombley, arrived at the site around 10:00 a.m. with the stated

intention of swapping out undersized ductwork that had previously

been installed. A worker employed by Prentice agreed that one of

defendant's employees was at the site that morning. Prentice

found the barrier missing from the shaft opening after Mereau's

accident and, while he did not see anyone remove the barrier,

Prentice speculated that Trombley had done so in order to replace

the ductwork.

The trial evidence was far from conclusive, however, in

establishing that anyone employed by defendant was at the site on

the morning of the accident. Portions of Trombley's deposition

testimony were read into the record, and he stated that no one

employed by defendant was working at the construction site on the

day of the accident. Defendant's principal confirmed that

Trombley was working elsewhere that day, and business records

corroborating his assertions were entered into evidence. Other

witnesses also called the accounts of Prentice and his employee

into question. Defendant Eric Young, another subcontractor on

the project who had successfully moved for summary judgment

dismissing the claims against him prior to trial, testified that

he was working on the second floor on the day of the accident and

did not see or hear any of defendant's employees. Young also

undercut Prentice's claim that Trombley was changing the ductwork

in the elevator shaft, testifying that Prentice had authorized

Young to work in the shaft at 8:00 a.m. on the day of the

accident because the ductwork had been completed. The remaining

witnesses either did not see, or could not confirm seeing,

Trombley or another employee of defendant at the construction

site on the day of the accident. A significant array of evidence

therefore suggested that neither Trombley nor any of defendant's

other employees were present to remove the barrier in the leadup

to Mereau's accident. The jury chose to credit this proof and,

deferring to its assessments of credibility, we cannot say that

the verdict was against the weight of the evidence (see Minutolo

v County of Broome, 130 AD3d 1202, 1203 [2015]; Johnson v

Ingalls, 95 AD3d 1398, 1399 [2012]; Perry v Wine & Roses, Inc.,

40 AD3d 1299, 1300 [2007]). 
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As a final matter, plaintiffs argue that Supreme Court

erred in declining to give a missing witness charge with regard

to Trombley. Plaintiffs subpoenaed Trombley but did not call him

to the stand, and both plaintiffs and defendant read certain

portions of his deposition testimony into the record.1 Defendant

also chose not to call Trombley as a witness, and plaintiffs

declined the opportunity to submit any further proof in rebuttal.

Plaintiffs instead waited until after the close of proof to

request a missing witness charge, thereby depriving defendant of

"any opportunity to account for [Trombley's] absence, argue that

[it] did not have the requisite control over him, or attempt to

procure his appearance" (Herman v Moore, 134 AD3d 543, 545

[2015]; see People v Gonzalez, 68 NY2d 424, 427-428 [1986];

Popolizio v County of Schenectady, 62 AD3d 1181, 1184 [2009]). 

Inasmuch as plaintiffs' request was untimely and would have

resulted in undue surprise to defendant if granted, its rejection

by Supreme Court was not an abuse of discretion (see People v

Alexander, 127 AD3d 1429, 1433 [2015], lv denied 25 NY3d 1197

[2015]; People v Turner, 73 AD3d 1282, 1283-1284 [2010], lv

denied 15 NY3d 896 [2010]; Popolizio v County of Schenectady, 62

AD3d at 1184; cf. R.T. Cornell Pharmacy v Guzzo, 135 AD2d 1000,

1002 [1987], lv dismissed 71 NY2d 928 [1988]). 

McCarthy, J.P., Egan Jr., Rose and Clark, JJ., concur.

ORDERED that the judgment and order are affirmed, with

costs.

ENTER:

Robert D. Mayberger

Clerk of the Court

1 The record is silent as to why Trombley did not testify

in person, and Supreme Court acknowledged during jury

deliberations that it "really [did not] know" why he was absent.