Opinion
June 23, 1964
Order, entered on May 7, 1962, granting defendants' motion to set aside the verdict and directing a new trial and denying their motion to dismiss the complaint, unanimously affirmed, with $20 costs and disbursements to defendants. The Trial Judge set aside the verdict stating "I am firmly convinced that the tactics of plaintiff's counsel during opening, examination and cross-examination of witnesses and summation prevented a fair trial and a dispassionate consideration of the evidence by the jury". We find ample support for this holding in the record. On prior occasions we have directed new trials for misconduct of plaintiff's trial counsel. ( Hoffman v. Greenberg, 19 A.D.2d 806; Tropp v. Jacobs, 273 App. Div. 274.) Further, we find the verdict to be against the weight of the credible evidence. "Mindful as we are of the weight to be given a jury's verdict where the facts are disputed and issues of credibility are presented, we are not required to give credence to a story so inherently improbable that we are morally certain it is not true." ( Bottalico v. City of New York, 281 App. Div 339, 341.) In addition, we are of the opinion that the verdict is grossly excessive.
Concur — Breitel, J.P., Valente, McNally, Stevens and Eager, JJ.