Ifraimoff & Associates, P.C. (Pollack, Pollack, Isaac
& De Cicco, LLP, New York, NY [Brian J. Isaac and Michael
H. Zhu], of counsel), for appellant-respondent.
G. Sawyers, Melville, NY (Scott W. Driver of counsel), for
Spitz & DeSantis, P.C., New York, NY (Marcy Sonneborn of
counsel), for respondents.
C. DILLON, J.P., BETSY BARROS, FRANCESCA E. CONNOLLY, ANGELA
G. IANNACCI, JJ.
DECISION & ORDER
action to recover damages for personal injuries, (1) the
plaintiff appeals, as limited by his brief, from so much of
an order of the Supreme Court, Queens County (Greco, Jr.,
J.), entered April 2, 2015, as denied that branch of his
motion pursuant to CPLR 4404(a) which was to set aside so
much of a jury verdict as found that the actions of the
defendants Singh Towing, Inc., and Kulwinder Singh were not a
proximate cause of his injuries, and (2) the defendants Azeem
Khan and Sabreena N. Khan cross-appeal, as limited by their
brief, from so much of the same order as denied those
branches of their cross motion pursuant to CPLR 4404(a) which
were to set aside so much of the verdict as was against them
and as found that the actions of the defendants Singh Towing,
Inc., and Kulwinder Singh were not a proximate cause of the
that the order is affirmed insofar as appealed and
cross-appealed from, with one bill of costs to the defendants
Singh Towing, Inc., and Kulwinder Singh, payable by the
plaintiff and the defendants Azeem Khan and Sabreena N. Khan,
appearing separately and filing separate briefs.
plaintiff was a passenger in a tow truck operated by the
defendant Kulwinder Singh and owned by the defendant Singh
Towing, Inc. (hereinafter together the Singh defendants).
Singh's tow truck was parked on the left side of 115th
Street in Queens, a one-way, one-lane road. Singh pulled the
tow truck from its parked position into the road, and was
subsequently struck on the right passenger side by a vehicle
operated by the defendant Sabreena N. Khan and owned by the
defendant Azeem Khan (hereinafter together the Khan
defendants). At trial, Singh testified that he began to pull
his tow truck out into the road, observed the Khan
defendants' vehicle approximately 200 feet behind him in
his side-view mirror, and brought his truck to a stop, with
the front cab of the tow truck extending approximately four
feet into the roadway. Thereafter, Khan's vehicle struck
the tow truck. By contrast, Sabreena N. Khan testified that
she was looking straight in front of her vehicle and did not
see the tow truck in the roadway until the moment of the
charge, the Supreme Court instructed the jury, inter alia,
that drivers have a duty to see that which they should have
seen by the proper use of their senses (see 2 NY PJI
2d 2:77.1), and a duty to move from a stopped or parked
position only when such movement can be made with reasonable
safety (see Vehicle & Traffic Law § 1162).
The jury returned a verdict finding that Sabreena N. Khan was
negligent and that her conduct was a substantial factor in
causing the accident. The jury found that Singh acted
negligently, but that his negligence was not a substantial
factor in causing the accident. The plaintiff moved, inter
alia, pursuant to CPLR 4404(a) to set aside so much of the
verdict as found that the actions of the Singh defendants
were not a proximate cause of his injuries, arguing that the
jury's finding was contrary to the weight of the
evidence. The Khan defendants cross-moved, inter alia,
pursuant to CPLR 4404(a) to set aside the same finding as
contrary to the weight of the evidence. The Supreme Court
denied the plaintiff's motion and the Khan
defendants' cross motion. The plaintiff appeals and the
Khan defendants cross-appeal.
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"
(Sokolik v Pateman, 114 A.D.3d 839, 840; see
Lolik v Big V Supermarkets, 86 N.Y.2d 744, 746).
"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" (Sokolik v Pateman, 114 A.D.3d at
840-841; 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" (Lopreiato v
Scotti, 101 A.D.3d 829, 830 [internal quotation marks
omitted]; see Verizon N.Y., Inc. v Orange & Rockland
Utils., Inc., 100 A.D.3d 983). "A jury finding that
a party was negligent but that the negligence was not a
proximate cause of the accident is inconsistent and [contrary
to] the weight of the evidence only when the issues are so
inextricably interwoven as to make it logically impossible to
find negligence without also finding proximate
cause'" (Zhagui v Gilbo, 63 A.D.3d 919,
919-920, quoting Rubin v Pecoraro, 141 A.D.2d 525,
the issues of negligence and proximate cause were not
inextricably interwoven, and the jury determination that
Singh's negligence was not a proximate cause of the
accident was not contrary to the weight of the evidence
(see Zhagui v Gilbo, 63 A.D.3d at 920; Rubin v
Pecoraro, 141 A.D.2d at 527). A fair interpretation of
the evidence supports a finding that while Singh was
negligent in leaving his parking space without determining
that it was reasonably safe to do so, his actions were not a
proximate cause of the accident, and that Sabreena N.
Khan's failure to see Singh's tow truck and avoid a
collision was the sole proximate cause of the accident.
Accordingly, the Supreme Court properly denied those branches
of the plaintiff's motion and the Khan defendants'
cross motion which were to set aside so much of the jury
verdict as found that the ...