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Kohler v. Barker

Supreme Court of New York, Second Department

February 22, 2017

George Kohler, appellant,
v.
Eric P. Barker, et al., respondents. Index No. 18055/11

          Palermo Tuohy Bruno, P.L.L.C., Hauppauge, NY (Anthony M. Maragno of counsel), for appellant.

          Wilson Elser Moskowitz Edelman & Dicker LLP, New York, NY (Patrick J. Lawless of counsel), for respondents.

          CHERYL E. CHAMBERS, J.P., L. PRISCILLA HALL, ROBERT J. MILLER, FRANCESCA E. CONNOLLY, JJ.

          DECISION & ORDER

         In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Santorelli, J.), entered December 1, 2014, which, upon a jury verdict in favor of the defendants on the issue of liability and upon an order of the same court dated October 3, 2014, denying his motion pursuant to CPLR 4404(a) to set aside the verdict as inconsistent and contrary to the weight of the evidence, is in favor of the defendants and against him dismissing the complaint.

         ORDERED that the judgment is affirmed, with costs.

         On January 24, 2011, the plaintiff's vehicle collided with the right rear side of a truck driven by the defendant Eric P. Barker and owned by the defendant Nestle Waters North America, Inc., doing business as Poland Springs. The accident occurred when the plaintiff, who was driving his vehicle in excess of the posted speed limit, attempted to pass the truck, which had recently reentered the roadway, which had two westbound lanes, from the shoulder and was slowly moving into the left-hand lane in order to make a turn at the next intersection. Following a trial on the issue of liability, the jury found that Barker had been negligent, but that his negligence was not a substantial factor in causing the collision.

         The plaintiff's contention that the jury's verdict was inconsistent is unpreserved for appellate review, as he failed to object to the verdict on that ground before the jury was discharged, and did not raise the issue until his posttrial motion (see Reitzel v Hale, 128 A.D.3d 1045, 1046; Kontomichalos v County of Nassau, 69 A.D.3d 811, 811; Gunther v Muschio, 40 A.D.3d 1030, 1031; Gilbert v Kingsbrook Jewish Ctr., 37 A.D.3d 531, 532).

         The Supreme Court properly denied 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. A jury verdict should not be set aside as contrary to the weight evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence (see Lolik v Big V Supermarkets, 86 N.Y.2d 744, 746; Scalogna v Osipov, 117 A.D.3d 934, 935; Crooks v E. Peters, LLC, 103 A.D.3d 828, 829; Lopreiato v Scotti, 101 A.D.3d 829). When a verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view (see Young Mee Oh v Koon, 140 A.D.3d 861, 862; Handwerker v Dominick L. Cervi, Inc., 57 A.D.3d 615). Under the facts of this case, the jury could have reasonably concluded that although Barker was negligent, his negligence was not a substantial factor in causing the accident (see Gerdvil v Tarnowski, 43 A.D.3d 995, 996; Aprea v Franco, 292 A.D.2d 478, 479).

         The admissibility and scope of expert testimony is a determination within the discretion of the trial court (see Price v New York City Hous. Auth., 92 N.Y.2d 553, 558; Doviak v Finkelstein & Partners, LLP, 137 A.D.3d 843, 847; Galasso v 400 Exec. Blvd., LLC, 101 A.D.3d 677, 678). Generally, expert opinion is proper when it would help clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror (see De Long v County of Erie, 60 N.Y.2d 296, 307; Matter of Islam v Lee, 115 A.D.3d 952, 953). Here, the Supreme Court did not improvidently exercise its discretion in admitting the testimony of the defendants' expert. Contrary to the plaintiff's contention, the testimony of the defendants' expert was based on facts in the record and his own analysis, not speculation (see Felicia v Boro Crescent Corp., 105 A.D.3d 697, 698; Plainview Water Dist. v Exxon Mobil Corp., 66 A.D.3d 754, 755; Shi Pei Fang v Heng Sang Realty Corp., 38 A.D.3d 520, 521).

         The plaintiff's remaining contention is unpreserved ...


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