Saintume v Lamattina (2021 NY Slip Op 02004) Saintume v Lamattina 2021 NY Slip Op 02004 Decided on March 31, 2021 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 March 31, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department REINALDO E. RIVERA, J.P. CHERYL E. CHAMBERS COLLEEN D. DUFFY HECTOR D. LASALLE BETSY BARROS, JJ. 2019-08214 (Index No. 607217/15) [*1]Lyonnel Saintume, respondent, vElizabeth Lamattina, appellant. Baxter Smith & Shapiro, P.C. (Saretsky Katz & Dranoff, LLP, New York, NY [Patrick Dellay and Eric Dranoff], of counsel), for appellant. Rosner Russo Shahabian, PLLC, Uniondale, NY (Allen J. Rosner of counsel), for respondent. DECISION & ORDER In an action to recover damages for personal injuries, the defendant appeals from an interlocutory judgment of the Supreme Court, Nassau County (Arthur M. Diamond, J.), entered June 19, 2019. The interlocutory judgment, upon a jury verdict on the issue of liability finding the defendant to be 100% at fault in the happening of the accident, and upon an order of the same court dated May 6, 2019, denying the defendant's motion pursuant to CPLR 4404(a) to set aside the jury verdict and for judgment as a matter of law dismissing the complaint, or, in the alternative, for a new trial on the issue of liability, is in favor of the plaintiff and against the defendant on the issue of liability. ORDERED that the interlocutory judgment is reversed, on the law, with costs, that branch of the defendant's motion which was pursuant to CPLR 4404(a) to set aside the jury verdict and for judgment as a matter of law dismissing the complaint is granted, and the order dated May 6, 2019, is modified accordingly. The plaintiff, an exterminator, allegedly was injured on August 7, 2013, when he partially fell through the floor of an unfinished attic located in a home then owned by the defendant. At the liability trial, the plaintiff testified, in relevant part, that he was at the defendant's home to address a bee problem. After walking around the house and inspecting the outside, the plaintiff asked the defendant if he could go up into the attic. In order to get to the hatch leading to the attic, the plaintiff and the defendant had to clear a closet that was "packed with luggage and clothes and stuff like that." The plaintiff then climbed a ladder into the attic. The plaintiff described the unfinished attic as consisting of large beams that he referred to as "main beams," and his trial counsel repeatedly referred to as "support beams" (hereinafter main beams), running parallel to each other from one side of the attic to the other, as well as smaller pieces of wood (hereinafter smaller pieces of wood), which the plaintiff described as "little pieces of beams on top, like holding some part of—I don't know—to …
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