Strouse v. United Parcel Service

—Judgment unanimously affirmed without costs. Memorandum: Plaintiffs appeal from a judgment entered in favor of defendant upon a jury verdict of no cause of action. Plaintiffs commenced this action seeking damages for injuries allegedly sustained by Richard A. Strouse (plaintiff) when he moved a heavy box from a counter scale to a floor scale at the direction of defendant’s employee at the United Parcel Service Customer Service Center in New Hartford. Plaintiffs failed to preserve for our review their contention that this Court’s prior denial of defendant’s motion for summary judgment (Strouse v United Parcel Serv., 994 245 AD2d 1117) is the law of the case and limits the admissibility of evidence at trial. In any event, that contention is without merit (see, Banque Indosuez v Sopwith Holdings Corp., 257 AD2d 519, 520, lv denied 93 NY2d 806). “The order denying summary judgment * * * established only that the motion papers indicated that there were triable issues of fact” (Caster v Increda-Meal, Inc. [appeal No. 2], 238 AD2d 917, 919). Contrary to plaintiffs’ contention, Supreme Court properly instructed the jury on the issue of foreseeability (see, PJI 2:12). We also reject plaintiffs’ contention that the verdict is against the weight of the evidence. Based upon the proof adduced at trial, the jury could rationally conclude that defendant’s employee reasonably believed that plaintiff could move the box without assistance (see, Riggio v New Creation Fellowship, 249 AD2d 942). Plaintiffs’ remaining contention is without merit. (Appeal from Judgment of Supreme Court, Oneida County, Ringrose, J. — Negligence.) Present — Pine, J. P., Wisner, Balio and Lawton, JJ.