Opinion
CA 04-02517.
June 10, 2005.
Appeal from a judgment of the Supreme Court, Erie County (Joseph D. Mintz, J.), entered June 4, 2004. The judgment dismissed the complaint on a verdict of no cause of action.
BROWN CHIARI LLP, LANCASTER (SAMUEL J. CAPIZZI OF COUNSEL), FOR PLAINTIFF-APPELLANT.
FISCHBEIN, BADILLO, WAGNER HARDING, NEW YORK (CHRISTOPHER A. MAROTHY OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
Before: Hurlbutt, J.P., Scudder, Kehoe, Gorski and Hayes, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action to recover damages for injuries he sustained when the tractor-trailer that he was operating was rear-ended by a tractor-trailer owned and operated by defendants. Supreme Court properly denied plaintiff's motion pursuant to CPLR 4404 (a) seeking to set aside the jury verdict in favor of defendants as against the weight of the evidence. At trial, defendants offered a nonnegligent explanation for the collision ( see Stalikas v. United Materials, 306 AD2d 810, 810-811, affd 100 NY2d 626; Chepel v. Meyers, 306 AD2d 235, 236-237; Simpson v. Eastman, 300 AD2d 647, 648), and thus it cannot be said that the evidence so preponderates in favor of plaintiff that the verdict could not have been reached on any fair interpretation of the evidence ( see Lolik v. Big V Supermarkets, 86 NY2d 744, 746; Kirby v. Monroe No. 1 Bd. of Coop. Educ. Servs., 2 AD3d 1387, 1389; see also Simpson, 300 AD2d at 648).