Gavitt v Citnalta Constr. Corp.

Gavitt v Citnalta Constr. Corp. 2006 NY Slip Op 07278 [33 AD3d 406] October 12, 2006 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 13, 2006

Frederick Gavitt et al., Appellants,
v
Citnalta Construction Corporation et al., Respondents, et al., Defendants.

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Judgment, Supreme Court, New York County (Leland DeGrasse, J.), entered August 16, 2005, after jury verdict in favor of defendants Citnalta Construction and New York City Transit Authority (NYCTA), unanimously affirmed, without costs.

The jury found that the unsafe condition of the workplace was not the result of negligence on the part of defendants Citnalta and NYCTA, and they did not violate Industrial Code (12 NYCRR) § 23-1.8 (a) by failing to provide eye protection suitable for the hazardous work performed.

Plaintiffs' assertion that the verdict was irreconcilably inconsistent is unpreserved since they failed to raise this issue before the court discharged the jury (see Barry v Manglass, 55 NY2d 803, 806 [1981]; Tanya Knitwear [PVT], Ltd. v Young Stuff Apparel Group, Inc., 12 AD3d 258 [2004]), and we decline to address the issue. This is not a case where the weight-of-evidence and inconsistency arguments are inextricably interwoven, inasmuch as the jury here specifically found that Citnalta and NYCTA were not negligent (compare Skowronski v Mordino, 4 AD3d 782 [2004]).

The verdict was also not against the weight of the evidence, as the jury could have reached its verdict based on a reasonable interpretation of the evidence (see Cohen v Hallmark [*2]Cards, 45 NY2d 493, 499 [1978]), and such a determination should not be lightly set aside (Pavlou v City of New York, 21 AD3d 74, 76 [2005], appeal dismissed 5 NY3d 878 [2005]). Concur—Buckley, P.J., Mazzarelli, Williams, Gonzalez and Sweeny, JJ.