Doherty v. King Kullen Grocery Co.

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Suffolk County (Berler, J.), entered May 8, 1998, which, upon a determination of the defendant’s motion pursuant to CPLR 4401 made at the close of trial for judgment in its favor as a matter of law, is in favor of the defendant and against them, dismissing the complaint. Ordered that the judgment is affirmed, with costs. The Supreme Court properly granted the defendant’s motion pursuant to CPLR 4401 for judgment in its favor as a matter of law. Viewing the evidence presented in the .light most favorable to the plaintiffs, and giving them every reasonable inference which may properly be drawn therefrom, there was no rational process by which the jury could have found that the defendant created the condition which caused the injured plaintiff to fall (see, Szczerbiak v Pilat, 90 NY2d 553, 556). Any such finding by the jury in the instant case would have been based upon speculation, rather than logical inferences drawn from the evidence (see, Bradish v Tank Tech Corp., 216 AD2d 505, 506; Thomas v New York City Tr. Auth., 194 AD2d 663; Fleming v Kings Ridge Recreation Park, 138 AD2d 451). The plaintiffs’ remaining contention has not been preserved [569] for appellate review (see, Pochrov Ministries v Long Is. Light. Co., 221 AD2d 610; Volpe v Good Samaritan Hosp., 213 AD2d 398). Mangano, P. J., Santucci, Krausman, Florio and H. Miller, JJ., concur.