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VICTOR LIOTTA v. ALBERT MCQUEEN (04/21/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


April 21, 1969

VICTOR LIOTTA, APPELLANT, ET AL., PLAINTIFFS,
v.
ALBERT MCQUEEN, RESPONDENT

In a negligence action to recover damages for personal injuries, plaintiff Victor Liotta appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Nassau County, entered April 2, 1968 after a non-jury trial, as limited his recovery to $1,250 plus costs and disbursements.

Brennan, Rabin, Benjamin and Martuscello, JJ., concur; Christ, Acting P. J., not voting.

In our opinion, the trier of the facts was warranted in not adopting the opinion of appellant's medical expert as controlling in the case. Considering all the proof elicited upon the trial, the court (sitting without a jury) was free to reject the testimony of appellant's physician both as to the extent of appellant's 1963 injury and the causal relationship between that injury and the March, 1965, accident as unsupported by a preponderance of the credible evidence. Although respondent offered no medical evidence to contradict appellant's claims, the facts of the case raise great doubt as to the truthfulness and accuracy of appellant's own proof. Nor can we say, as a matter of law, that the verdict is inadequate.

Disposition

Judgment affirmed insofar as appealed from, with costs.

19690421

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