SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1246 

CA 16-00500 

PRESENT: PERADOTTO, J.P., CARNI, CURRAN, TROUTMAN, AND SCUDDER, JJ. 

 

MARCIA WENTLAND, PLAINTIFF-APPELLANT, 

V MEMORANDUM AND ORDER

E.A. GRANCHELLI DEVELOPERS, INC., AND K.M. 

TREATS, DEFENDANTS-RESPONDENTS. 

(APPEAL NO. 2.) 

 

BROWN CHIARI LLP, BUFFALO (DAVID W. OLSON OF COUNSEL), FOR

PLAINTIFF-APPELLANT. 

LAW OFFICES OF DESTIN C. SANTACROSE, BUFFALO (LISA DIAZ-ORDAZ OF

COUNSEL), FOR DEFENDANT-RESPONDENT E.A. GRANCHELLI DEVELOPERS, INC.

HAGELIN SPENCER LLC, BUFFALO (WILLIAM SWIFT OF COUNSEL), FOR

DEFENDANT-RESPONDENT K.M. TREATS.

Appeal from a judgment of the Supreme Court, Niagara County

(Frank Caruso, J.), entered January 22, 2016. The judgment granted

judgment in favor of defendants upon a jury verdict. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action to recover damages

for injuries she allegedly sustained when she slipped and fell outside

the storefront of defendant K.M. Treats, a tenant in a plaza owned by

defendant E.A. Granchelli Developers, Inc. (Granchelli). At trial,

plaintiff’s theory was that she slipped on ice that formed when

melting snow dripped from Granchelli’s metal canopy and froze on the

sidewalk below, and thus Granchelli was negligent in creating the

dangerous condition on its sidewalk. The jury returned a verdict

finding that defendants were not negligent. Plaintiff thereafter

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

and on the ground of juror misconduct, and Supreme Court denied that

motion.

“It is well established that [a] verdict rendered in favor of a

defendant may be successfully challenged as against the weight of the

evidence only when the evidence so preponderated in favor of the

plaintiff that it could not have been reached on any fair

interpretation of the evidence” (McMillian v Burden, 136 AD3d 1342,

1343 [internal quotation marks omitted]; see Krieger v McDonald’s

Rest. of N.Y., Inc., 79 AD3d 1827, 1828, lv dismissed 17 NY3d 734). 
-2- 1246 

CA 16-00500 

That determination is within the court’s sound discretion and, “if the

verdict is one that reasonable persons could have rendered after

receiving conflicting evidence, the court should not substitute its

judgment for that of the jury” (McMillian, 136 AD3d at 1343 [internal

quotation marks omitted]; see Parr v Mongarella, 77 AD3d 1429, 1429-

1430). Where there is conflicting testimony, it is the jury’s

function to make credibility determinations, which are entitled to

deference based on the jury’s opportunity to see and hear the

witnesses (see McMillian, 136 AD3d at 1343-1344). Moreover, the jury

is entitled to reject the opinion of an expert witness, particularly

where such testimony is contrary to the testimony of another expert

witness whom the jury finds more credible (see Sanchez v Dawson, 120

AD3d 933, 935; see also McMillian, 136 AD3d at 1344).

Contrary to plaintiff’s contention, we conclude that the verdict

is not against the weight of the evidence. On cross-examination,

plaintiff testified that the ice patch on which she slipped was 15 to

16 inches wide and, although she felt “a couple drops” of water from

the canopy, she could not say that dripping water caused the condition

on which she fell. Granchelli’s maintenance supervisor, upon whose

testimony plaintiff heavily relies, testified that the alleged defect

in the canopy consistently created an ice patch that was four inches

wide, and could not have created an icy condition as large as the one

on which plaintiff allegedly slipped. Their testimony comports with

the testimony of Granchelli’s expert, who opined that, although an

“extremely small” amount of water likely dripped off the canopy, the

icy condition on the sidewalk was more likely ice created by

precipitation. Moreover, Granchelli’s office personnel testified that

they never received a complaint about icy conditions or about the

metal canopy prior to plaintiff’s accident. Although the maintenance

supervisor testified otherwise, he was married to the owner of the

other defendant herein, whose interests were adverse to Granchelli’s

interests. We therefore conclude that the evidence did not so

preponderate in favor of plaintiff that the verdict could not have

been reached upon a fair interpretation of the evidence (see Krieger,

79 AD3d at 1828-1829).

We reject plaintiff’s further contention that the court abused

its discretion in denying her motion to set aside the verdict insofar

as it was based on juror misconduct. The court held a hearing on that

part of the motion and took testimony from one juror who discussed

with the jury his observations about canopies. We conclude that the

evidence presented at the hearing supports the court’s conclusion that

the subject juror did not hold himself out to the jury as an expert,

but properly based his opinions on his day-to-day life experience (see

generally Campopiano v Volcko, 82 AD3d 1587, 1588-1589).

Entered: December 23, 2016 Frances E. Cafarell

Clerk of the Court