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Soto v. Elmback Owners, LLC

Supreme Court of New York, Second Department

May 22, 2013

David Soto, appellant,
v.
Elmback Owners, LLC, et al., respondents. Index No. 28495/08

DeSimone, Aviles, Shorter & Oxamendi, LLP, New York, N.Y. (Dara L. Warren and Jason M. Bernstein of counsel), for appellant.

Thomas D. Hughes, New York, N.Y. (Richard C. Rubinstein of counsel), for respondents.

DANIEL D. ANGIOLILLO, J.P. CHERYL E. CHAMBERS L. PRISCILLA HALL SHERI S. ROMAN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Queens County (Rosengarten, J.), entered November 22, 2011, which denied his motion pursuant to CPLR 4404(a) to set aside, as contrary to the weight of the evidence, a jury verdict in favor of the defendants on the issue of damages finding that the subject accident was not a substantial factor in causing his injury, and (2) a judgment of the same court entered January 4, 2012, which, upon the jury verdict and upon the order, is in favor of the defendants and against him dismissing the complaint.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the defendants.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on appeal from the judgment (see CPLR 5501[a][1]).

A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence (see Das v Costco Wholesale Corp., 98 A.D.3d 712; Coma v City of New York, 97 A.D.3d 715; DeSalvo v Kreynin, 95 A.D.3d 819). "Whether a jury verdict should be set aside as contrary to the weight of the evidence does not involve a question of law, but rather requires a discretionary balancing of many factors" (Nicastro v Park, 113 A.D.2d 129, 133; see Cohen v Hallmark Cards, 45 N.Y.2d 493, 499). "It is for the jury to make determinations as to the credibility of the witnesses, and great deference in this regard is accorded to the jury, which had the opportunity to see and hear the witnesses" (Exarhouleas v Green 317 Madison, LLC, 46 A.D.3d 854, 855; Lopreiato v Scotti, 101 A.D.3d 829; Verizon N.Y., Inc. v Orange & Rockland Utils., Inc., 100 A.D.3d 983; Vaccarino v Mad Den, Inc., 100 A.D.3d 867; Jean-Louis v City of New York, 86 A.D.3d 628).

Here, the Supreme Court properly found that the jury's determination was supported by a fair interpretation of the evidence adduced at trial. Thus, the court correctly denied the plaintiff's motion to set aside, as contrary to the weight of the evidence, the jury verdict in favor of the defendants on the issue of damages.

ANGIOLILLO, J.P., CHAMBERS, HALL and ROMAN, JJ., concur.


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