LaMorte v CFG Profile, Inc.

LaMorte v CFG Profile, Inc. 2017 NY Slip Op 06956 Decided on October 4, 2017 Appellate Division, Second 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 October 4, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
LEONARD B. AUSTIN
SANDRA L. SGROI
HECTOR D. LASALLE, JJ.
2016-10269
(Index No. 797/14)

[*1]Phyllis LaMorte, et al., appellants,

v

CFG Profile, Inc., doing business as Profile Hair Salon, respondent.

Thomas M. Martyn, Bayville, NY, for appellants.

Baxter Smith & Shapiro, P.C., Hicksville, NY (Harold A. Campbell of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (Libert, J.), dated July 27, 2016, as denied that branch of their motion pursuant to CPLR 4404(a) which was to set aside a jury verdict in favor of the defendant and against them in the interest of justice and for a new trial.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly denied that branch of the plaintiffs' motion pursuant to CPLR 4404(a) which was to set aside the jury verdict in the interest of justice and for a new trial. The plaintiffs asserted in their motion that the Supreme Court erred in its charge to the jury by omitting portions of the Pattern Jury Instructions charge (see 1A PJI 2:90) relating to the issue of the defendant's failure to warn the injured plaintiff of an allegedly unsafe condition. Since the jury found there to be no dangerous condition on the premises and, thus, did not reach the issue of the defendant's negligence or the comparative negligence of the injured plaintiff, if any, any error in the court's charge was rendered harmless (see Maione v Pindyck, 32 AD3d 827, 828; Wong v Negron, 294 AD2d 358, 358).

BALKIN, J.P., AUSTIN, SGROI and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court