Opinion
February 15, 1977
In a negligence action to recover damages for personal injuries, plaintiff appeals from a judgment of the Supreme Court, Kings County, entered January 8, 1976, which is in favor of defendant and against her, upon the trial court's granting of defendant's motion to set aside the jury verdict in her favor. Judgment reversed, on the law, and new trial granted, with costs to abide the event. In our opinion the verdict was contrary to the weight of the evidence, but was not incredible as a matter of law. In such a situation, a new trial is preferable (see CPLR 4404, subd [a]; 4 Weinstein-Korn-Miller, N Y Civ Prac, par 4404.08). The cases relied upon by the Trial Judge (Goldstein v Lentino Constr. Corp., 8 A.D.2d 274; Abruzzo v Board of Educ., 12 A.D.2d 797; Cavadi v New York City Tr. Auth., 7 A.D.2d 299) are similar to the instant case in that each plaintiff changed his or her testimony on the eve of trial. However, it will be noted that in each of those cases a new trial was granted. Latham, Acting P.J., Margett, Suozzi and Mollen, JJ., concur.