*1 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 1291

CA 11-01332

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ. THERESA OVERHOFF, PLAINTIFF-APPELLANT,

V MEMORANDUM AND ORDER BAUER SERVICE, INC., DEFENDANT-RESPONDENT.

(APPEAL NO. 1.)

DUKE, HOLZMAN, PHOTIADIS & GRESENS LLP, BUFFALO (ELIZABETH A. KRAENGEL OF COUNSEL), FOR PLAINTIFF-APPELLANT.

BROWN & KELLY, LLP, BUFFALO (RYAN J. MILLS OF COUNSEL), FOR DEFENDANT-RESPONDENT. Appeal from a judgment of the Supreme Court, Erie County (Paula L. Feroleto, J.), entered December 9, 2010 in a personal injury action. The judgment, entered upon a jury verdict in favor of defendant and against plaintiff, awarded defendant costs and disbursements.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for injuries that she sustained when she fell upon stepping in a gap in the concrete at a service station owned and operated by defendant. The jury returned a verdict of no cause of action, and Supreme Court denied plaintiff’s post-trial motion to set aside the verdict as against the weight of the evidence and for a new trial. Contrary to plaintiff’s contention, the verdict is not against the weight of the evidence, i.e., it cannot be said that “the preponderance of the evidence in favor of [plaintiff] is so great that the verdict could not have been reached upon any fair interpretation of the evidence” ( Dannick v County of Onondaga , 191 AD2d 963, 964; see generally Lolik v Big V Supermarkets , 86 NY2d 744, 746).

Entered: December 30, 2011 Frances E. Cafarell

Clerk of the Court