Hizam v. Mossa
695 N.Y.S.2d 854
N.Y. App. Div.
1999
Check Treatment

—Judgment unanimously affirmed with costs. Memorandum: Plaintiff appeals from a judgment in favor of defendant in this negligence action. Plaintiff contends that the jury verdict is against the weight of the evidence and that defendant was negligent as a matter of law. We disagree. “Where varying inferences from the evidence are possible, the issue of negligence is left to the jury” (Harris v Armstrong, 97 AD2d 947, affd 64 NY2d 700, citing Eddy v Syracuse Univ., 78 AD2d 989, 990, Iv denied 52 NY2d 705). Here, defendant was holding a ladder for plaintiff but left his position temporarily to retrieve a tool. Plaintiff fell during defendant’s absence. The jury was entitled to conclude that defendant was not negligent.

Plaintiff further contends that he was deprived of a fair trial because of improper statements made by defendant’s attorney. The alleged improper statements were in fact innocent references to the ethnic heritage of the parties and, in any event, were fair response to statements regarding plaintiff’s recent immigration made by plaintiff’s attorney in his opening statement. (Appeal from Judgment of Supreme Court, Erie County, LaMendola, J. — Negligence.) Present — Denman, P. J., Green, Hayes, Pigott, Jr., and Scudder, JJ.