Opinion
November 19, 1997
(Appeal from Judgment of Supreme Court, Erie County, Mintz, J. — Negligence.)
Present — Pine, J. P., Lawton, Hayes, Wisner and Fallon, JJ.
Judgment unanimously affirmed without costs. Memorandum: Supreme Court properly denied plaintiffs' motion to set aside the jury verdict in favor of defendants in this personal injury action. "A motion to set aside a jury verdict of no cause of action should not be granted unless the preponderance of the evidence in favor of the moving party is so great that the verdict could not have been reached upon any fair interpretation of the evidence" ( Dannick v. County of Onondaga, 191 A.D.2d 963, 964; see, Cohen v. Hallmark Cards, 45 N.Y.2d 493, 498-499). In this case, the jury could rationally conclude that defendant Janet M. Wolfe was not negligent in the manner in which she drove her rental car into the intersection. The jury was entitled to credit her testimony that the traffic light was yellow rather than red when she entered the intersection. Thus, a fair interpretation of the evidence supports the jury's verdict ( see, Cone v. Williams [appeal No. 1], 182 A.D.2d 1102, lv denied 80 N.Y.2d 758; Bolles v. County of Cattaraugus, 162 A.D.2d 975, rearg granted 166 A.D.2d 931).
The court also properly denied plaintiffs' motion to vacate the judgment on the grounds of newly discovered evidence and fraud ( see, CPLR 5015 [a][2],[3]). Plaintiffs failed to establish that the evidence in question, photographs of Wolfe and the passenger in her vehicle, could not have been obtained earlier with the exercise of due diligence ( see, CPLR 5015 [a] [2]; Travelers Ins. Cos. v. Howard E. Conrad, Inc., 233 A.D.2d 890). In any event, that evidence would "merely undermine the credibility of an adverse witness" and thus is insufficient to warrant a new trial on the ground of newly discovered evidence ( Gonzalez v. Chalpin, 233 A.D.2d 367). With respect to plaintiffs' allegations of fraud, credibility issues are insufficient to warrant a new trial on the ground of "fraud, misrepresentation, or other misconduct" (CPLR 5015 [a] [3]).
We have examined plaintiffs' remaining contentions and conclude that they are lacking in merit.