SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
June 9, 1969
ROSE PATERNOSTRO, RESPONDENT,
SALVATORE SCHILLACI, APPELLANT, ET AL., DEFENDANT
In an action to recover damages for personal injuries incurred by plaintiff while a passenger in a motor vehicle owned and operated by appellant, the appeal is from an order of the Supreme Court, Westchester County, dated October 9, 1968, which (1) granted plaintiff's motion to set aside a jury verdict in favor of appellant upon a trial of the issues of liability only and to direct a verdict in favor of plaintiff on those issues and (2) set the case down for an assessment of damages.
Beldock, P. J., Christ, Rabin, Munder and Martuscello, JJ., concur.
No claim is made that errors of law occurred at the trial or that prejudicial conduct improperly influenced the verdict. Under these circumstances, and on the proof adduced, which indicated an issue of fact as to the negligence of appellant, it may not be held that the evidence preponderates so greatly in favor of plaintiff as to establish that the jury's verdict for appellant "could not have been reached upon any fair interpretation of the evidence" (Olsen v. Chase Manhattan Bank, 10 A.D.2d 539, 544; Herman v. Hubert, 12 A.D.2d 767).
Order reversed, with costs, plaintiff's motion denied and jury verdict reinstated.
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