Gray Line N.Y. Tours, Inc.
v.
Big Apple Moving & Storage, Inc.

Not overruled or negatively treated on appealinfoCoverage
Supreme Court, Appellate Division, First Department, New York.Jun 9, 2016
31 N.Y.S.3d 881 (N.Y. App. Div. 2016)
31 N.Y.S.3d 881140 A.D.3d 4782016 N.Y. Slip Op. 4455

06-09-2016

GRAY LINE NEW YORK TOURS, INC., et al., Plaintiffs–Appellants, v. BIG APPLE MOVING & STORAGE, INC., Defendant–Respondent, Salvador Skerret, Defendant. [And a Third–Party Action].

The Law Offices of Christopher P. DiGiulio, P.C., New York (William Thymius of counsel), for appellants. Molod Spitz & DeSantis, P.C., New York (Marcy Sonneborn of counsel), for respondent.


The Law Offices of Christopher P. DiGiulio, P.C., New York (William Thymius of counsel), for appellants.

Molod Spitz & DeSantis, P.C., New York (Marcy Sonneborn of counsel), for respondent.

Opinion

Judgment, Supreme Court, New York County, (Martin Shulman, J.), entered May 6, 2015, upon a jury verdict in favor of defendants, unanimously affirmed, without costs.

The verdict was legally supported by sufficient evidence and was not against the weight of the evidence (see Cohen v. Hallmark Cards, 45 N.Y.2d 493, 498–499, 410 N.Y.S.2d 282, 382 N.E.2d 1145 [1978] ; Lolik v. Big v. Supermarkets, 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163 [1995] ), and the jury was free to rationally credit the defendant driver's statement that the accident was caused by unanticipated brake failure, rather than the alternative causes propounded by plaintiffs.

The court properly declined to direct a verdict, enter a judgment notwithstanding the verdict or preclude Big Apple from presenting evidence of a nonnegligent cause of the accident based on statements of its counsel or the pleadings in the third-party complaint because, to the extent facts were stated, the statements were not conclusive and constituted a permissive alternative pleading under CPLR 3014 (see People v. Brown, 98 N.Y.2d 226, 232 n. 2, 746 N.Y.S.2d 422, 774 N.E.2d 186 [2002] ).

We have considered plaintiffs' remaining arguments and find them unavailing.

MAZZARELLI, J.P., ACOSTA, SAXE, KAPNICK, KAHN, JJ., concur.