Aguiv.Fernandez

Supreme Court, Appellate Division, Second Department, New York.Jan 15, 2014
978 N.Y.S.2d 696 (N.Y. App. Div. 2014)
978 N.Y.S.2d 696113 A.D.3d 6452014 N.Y. Slip Op. 199

2014-01-15

Miguel AGUI, respondent, v. Adriane E. FERNANDEZ, et al., appellants.

Faust Goetz Schenker & Blee LLP, New York, N.Y. (Lisa De Lindsay of counsel), for appellants. Bruce S. Reznick, P.C. (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaac and Jillian Rosen], of counsel), for respondent.


Faust Goetz Schenker & Blee LLP, New York, N.Y. (Lisa De Lindsay of counsel), for appellants. Bruce S. Reznick, P.C. (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaac and Jillian Rosen], of counsel), for respondent.


In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Schack, J.), dated June 15, 2012, which granted that branch of the plaintiff's motion which was pursuant to CPLR 4404(a) to set aside a jury verdict in favor of them and against the plaintiff on the issue of liability as contrary to the weight of the evidence and for a new trial.

ORDERED that the order is reversed, on the facts, with costs, that branch of the plaintiff's motion which was pursuant to CPLR 4404(a) to set aside the verdict as contrary to the weight of the evidence and for a new trial is denied, the verdict is reinstated, and the matter is remitted to the Supreme Court, Kings County, for entry of a judgment in accordance with the verdict.

A jury verdict should not be set aside as contrary to the weight of the evidence unless the evidence so preponderates in favor of the moving party that the jury could not have reached its verdict by any fair interpretation of the evidence ( see Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163; Adetimirin v. Howland Hook Hous. Co., Inc., 92 A.D.3d 814, 939 N.Y.S.2d 498; Nicastro v. Park, 113 A.D.2d 129, 133–134, 495 N.Y.S.2d 184). Here, it was a fair interpretation of the evidence for the jury to have found that the plaintiff, a pedestrian, was not in the crosswalk when the defendant driver started making his turn, and that the defendant driver could not see the plaintiff ( see Seong Yim Kim v. New York City Tr. Auth., 87 A.D.3d 531, 533, 928 N.Y.S.2d 315; Collazo v. Metropolitan Suburban Bus Auth., 68 A.D.3d 803, 804, 891 N.Y.S.2d 129). Accordingly, the Supreme Court should not have set aside the jury's verdict in favor of the defendants. LEVENTHAL, J.P., CHAMBERS, LOTT and HINDS–RADIX, JJ., concur.