SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1015 

CA 11-01742 

PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND MARTOCHE, JJ. 

 

MICHAEL MCALEER AND KRISTI MCALEER, 

PLAINTIFFS-APPELLANTS,

V MEMORANDUM AND ORDER

CHARLES G. QUILL, JR. AND CHARLES G. QUILL, 

DOING BUSINESS AS ROYAL PHEASANT SUPPER CLUB, 

DEFENDANTS-RESPONDENTS. 

(APPEAL NO. 2.) 

 

HOGAN WILLIG, PLLC, AMHERST (TAMMY L. RIDDLE OF COUNSEL), FOR

PLAINTIFFS-APPELLANTS. 

SUGARMAN LAW FIRM, LLP, BUFFALO (MICHAEL A. RIEHLER OF COUNSEL), FOR

DEFENDANTS-RESPONDENTS. 

 

Appeal from a judgment of the Supreme Court, Erie County (Diane

Y. Devlin, J.), entered February 23, 2011 in a personal injury action. 

The judgment, among other things, dismissed plaintiffs’ complaint. 

It is hereby ORDERED that the judgment so appealed from is 

unanimously affirmed without costs.

Memorandum: Plaintiffs commenced this action seeking damages for

injuries sustained by Michael McAleer (plaintiff) when he slipped and

fell on ice outside a bar and restaurant operated by defendants. The

jury returned a verdict finding that defendants were not negligent,

and Supreme Court denied plaintiffs’ motion seeking to set aside the

verdict as against the weight of the evidence and seeking a new trial. 

We affirm. 

A verdict should not be set aside as against the weight of the

evidence “ ‘unless the preponderance of the evidence in favor of the

moving party is so great that the verdict could not have been reached

upon any fair interpretation of the evidence’ ” (Ruddock v

Happell, 307 AD2d 719, 720; see Krieger v McDonald’s Rest. of N.Y.,

Inc., 79 AD3d 1827, 1828, lv dismissed 17 NY3d 734), and that cannot

be said here. Plaintiffs’ expert engineer testified that, upon

considering the records of the National Weather Bureau for the day

preceding plaintiff’s fall, he determined that it was above freezing

during the daytime, which would have caused melting snow and runoff. 

He further testified that, by 1:00 a.m. the following morning, the

temperature was 32 degrees. The accident occurred at 3:00 a.m., and

plaintiff and witnesses to the accident testified that there was black
-2- 1015 

CA 11-01742 

ice on the sidewalk where plaintiff fell. Plaintiffs, however, did

not present evidence “concerning the timing of the formation of the

icy areas that caused the accident[] . . . [and thus] a fair

interpretation of the evidence supports the jury’s verdict, i.e., that

the specific icy areas at issue ‘formed so close in time to the

accident[] that [defendants] could not reasonably have been expected

to notice and remedy [them]’ ” (Krieger, 79 AD3d at 1828-1829; see

Jordan v Musinger, 197 AD2d 889, 890). Indeed, plaintiffs’ expert

testified that the air temperature and the pavement temperature could

vary, and thus the jury would have been compelled to engage in

speculation concerning when the ice formed.

We reject plaintiffs’ contention that defendants had constructive

notice of the dangerous condition because they should have known that

the temperature was going to drop, and they therefore should have

applied salt to the sidewalk before that occurred. A “ ‘[g]eneral

awareness that snow or ice may be present is legally insufficient to

constitute notice of the particular condition that caused a plaintiff

to fall’ ” (Krieger, 79 AD3d at 1829; see Boucher v Watervliet Shores

Assoc., 24 AD3d 855, 857). “[W]hen weather conditions cause property

to become dangerous by reason of the accumulation of ice, the law

affords the landowner a reasonable time after the . . . temperature

fluctuation which caused the hazardous condition to take corrective

action” (Bullard v Pfohl’s Tavern, Inc., 11 AD3d 1026, 1027 [emphasis

added and internal quotation marks omitted]).

Finally, we reject plaintiffs’ contention that the court erred in

its charge to the jury. The court properly charged the jury on

possessor liability in the context of a slip and fall case pursuant to

PJI 2:91 rather than the more general standard on possessor liability

pursuant to PJI 2:90 (see generally Revill v Boston Post Rd. Dev.

Corp., 293 AD2d 138, 141, appeal dismissed 98 NY2d 725). The court

also properly gave an intoxication charge inasmuch as there was

evidence before the jury to support that charge (see Johnson v White,

85 AD3d 977, 978).

Entered: September 28, 2012 Frances E. Cafarell

Clerk of the Court