Rodriguez v. Brooklyn Union Gas , 724 N.Y.S.2d 658 ( 2001 )

—In an action to recover damages for personal injuries, the plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Kings County (Steinhardt, J.), entered August 2, 2000, which, upon granting the defendant’s motion pursuant to CPLR 4401 which was for judgment as a matter of law, made at the close of evidence, is in favor of the defendant and against him, dismissing the complaint.

Ordered that the order and judgment is affirmed, with costs.

Contrary to the plaintiffs contention, the Supreme Court properly granted the defendant’s motion pursuant to CPLR 4401 which was for judgment in its favor as a matter of law, made at the close of evidence, on the ground that the plaintiff failed to establish a prima facie case of negligence. Viewing the evidence in the light most favorable to the plaintiff, there was no rational process by which the jury could have found that the defendant was negligent (see generally, Cohen v Hallmark Cards, 45 NY2d 493, 499). The plaintiffs contention that the defendant can be held vicariously liable for the acts of an independent contractor because of the alleged inherently dangerous nature of the contractor’s work is unpreserved for appellate review.

In light of our determination, it is unnecessary to address the plaintiffs remaining contentions. Altman, J. P., Friedmann, Luciano and H. Miller, JJ., concur.