MANNE v. MUSEUM OF MODERN ART (2007)

Judgment, Supreme Court, New York County (Kibbie F. Payne, J.), entered March 21, 2006, upon the jury's special verdict, in favor of defendant, unanimously affirmed, without costs.

A jury verdict should not be set aside as against the weight of the evidence unless the jury could not have reached its conclusion upon any fair interpretation of the evidence (see Nicastro v. Park, 113 A.D.2d 129, 495 N.Y.S.2d 184 [1985];  Cornier v. Spagna, 101 A.D.2d 141, 149, 475 N.Y.S.2d 7 [1984] ).   Disputes as to proof are “for the jury to resolve in assessing all of the evidence as well as the credibility of the witnesses” (Niewieroski v. National Cleaning Contrs., 126 A.D.2d 424, 425, 510 N.Y.S.2d 127 [1987], lv. denied 70 N.Y.2d 602, 518 N.Y.S.2d 1024, 512 N.E.2d 550 [1987] ).   Here, the disputed factual issues and any inconsistencies between plaintiff's trial testimony and his prior testimony were placed before the jury, whose resolution of any conflicting evidence is entitled to deference, and is more than amply supported in the record.

There was no error in the trial court's refusal to give a missing documents charge since plaintiff failed to make a prima facie showing that the documents in question actually existed and were under defendant's control (Crespo v. New York City Hous. Auth., 222 A.D.2d 300, 301, 635 N.Y.S.2d 593 [1995] ).

We have considered plaintiff's remaining arguments and find them unavailing.