Candela v New York City Sch. Constr. Auth.

Candela v New York City Sch. Constr. Auth. 2013 NY Slip Op 07677 Decided on November 19, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 19, 2013
Mazzarelli, J.P., Saxe, Moskowitz, DeGrasse, Gische, JJ.
11105 117686/00

[*1]Calogero Candela, et al., Plaintiffs-Appellants,

v

New York City School Construction Authority, et al., Defendants-Respondents.




Kenneth J. Ready & Associates, Mineola (Kenneth J. Ready of
counsel), for appellants.
Shaub Ahmuty Citrin & Spratt, Lake Success (Christopher
Simone of counsel), for respondents.

Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered March 19, 2013, which, to the extent appealable, denied plaintiffs' motion to renew their posttrial motion for a directed verdict on the issue of liability, unanimously affirmed, without costs.

Plaintiffs interpret this Court's prior decision (97 AD3d 507 [1st Dept 2012]), as making conclusive findings of fact as to existence of a dangerous condition and notice. However, appellate courts do not have the power to make factual findings in weight of the evidence analysis in a jury case (see Cohen v Hallmark Cards, 45 NY2d 493, 498-499 [1978]). Thus, plaintiff's reliance on the law of the case
doctrine is unavailing (see Siegel, NY Prac § 448 at 781 [5th ed 2011]).

Based on the foregoing, the court declines to consider defendants' contention that plaintiffs' motion could have also been denied on the alternative ground that it was untimely and did not meet the requirements of CPLR 2221.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 19, 2013

CLERK