Keeton v. Cardinal O'Hara High School , 649 N.Y.S.2d 627 ( 1996 )

Order and judgment unanimously reversed on the law without costs, motion denied and verdict reinstated. Memorandum: Supreme Court erred in setting aside a jury verdict for plaintiffs. There was sufficient credible evidence adduced at trial for the jury to conclude that defendants had both actual and constructive notice of the icy condition of the sidewalk that caused Donald Keeton (plaintiff) to fall. We reject the argument of defendants that evidence presented on their direct case cannot be considered when assessing whether plaintiff made out a prima facie case. "In determining whether plaintiffs initial burden was established, the court was obliged to consider all of the evidence, including the proof adduced by defendants” (National Bank v Systems Home Improvement, 69 AD2d 557, 562, affd 50 NY2d 814; see also, Urquhart v New York City Tr. Auth., 221 AD2d 336, lv denied 87 NY2d 811). (Appeal from Order and Judgment of Supreme Court, Erie County, Rath, Jr., J.— Negligence.) Present—Green, J. P., Lawton, Doerr, Balio and Boehm, JJ.