Rochester Telephone Corporation, Respondent, v. Green Island Construction Corporation, Appellant.

Court of Appeals of New York

51 N.Y.2d 788; 412 N.E.2d 1314; 433 N.Y.S.2d 88.

September 3, 1980, Argued; October 7, 1980, Decided.

PRIOR HISTORY: Appeal from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered July 6, 1979, which (1) reversed, on the law and the facts, a judgment of the Supreme Court in favor of defendant, dismissing the complaint, entered in Monroe County upon a decision of the court at a Trial Term (John J. Conway, J.), granting defendant's motions to dismiss the complaint and to set aside a verdict in favor of plaintiff, and (2) reinstated the verdict. Plaintiff commenced this action to recover damages for injury to its buried utility cable caused by certain highway construction performed by defendant. The Appellate Division concluded that the issues of foreseeability and contributory negligence were properly for the jury and that the trial court erred in setting aside the verdict.

Rochester Tel. Corp. v Green Is. Constr. Corp., 71 AD2d 798.

HEADNOTES: Trial -- Setting Verdict Aside

In a negligence action by a utility company to recover for damages to a buried utility cable caused by construction work performed by defendant, the Appellate Division properly reversed a judgment dismissing the complaint upon a decision of Supreme Court granting motions to dismiss and to set aside a verdict in plaintiff's favor, and properly reinstated the verdict. The propriety of the Appellate Division's holding that it was error to set aside the verdict as against the weight of the evidence is beyond the scope of review of the Court of Appeals; as to the motion to dismiss the complaint, there was sufficient evidence to go to the jury on the issues of foreseeability and contributory negligence.

COUNSEL: George A. Schell and Samuel M. Hall for appellant.

Alexander Geiger for respondent.

JUDGES: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum; Judge Gabrielli taking no part.

OPINION OF THE COURT

The order of the Appellate Division should be affirmed, with costs. At the close of plaintiff's evidence, defendant moved to dismiss the complaint, and the court reserved decision. Following the return of the jury's verdict for plaintiff, defendant made a second motion, to set aside the verdict as against the weight of the evidence. Thereupon the trial court granted both motions, and judgment was entered dismissing the complaint.

The Appellate Division, reversing on the law and the facts, held that the trial court was in error both in granting the motion to dismiss and in granting the motion to set aside the verdict. The propriety of the Appellate Division's holding that it was error to have set aside the verdict as against the weight of the evidence, although appealable, is beyond the scope of our review (Gutin v Mascali & Sons, 11 NY2d 97, 99; see Cohen and Karger, Powers of the New York Court of Appeals [rev ed], @ 148, p 588). Accordingly, as to this branch of the appeal there must be an automatic affirmance (Pfohl v Wipperman, 34 NY2d 597).

Whether there was sufficient evidence to take the case to the jury and thus to require a denial of the motion to dismiss, however, presents a question of law which we may review. On this branch of the appeal we agree with the Appellate Division that there was sufficient evidence to go to the jury on the issues both of foreseeability and of contributory negligence.

Order affirmed.