DANIELS v. Erie Painting & Maintenance, Inc., Defendant-Respondent.  (Appeal No. 2.) (2007)

Plaintiff commenced this action to recover damages for injuries he sustained in a chain-reaction automobile accident.   The accident occurred when a traffic sign placed by defendant Erie Painting & Maintenance, Inc. (EPMI) blew into plaintiff's lane of travel, causing the vehicle directly in front of plaintiff to stop.   Plaintiff's vehicle was rear-ended by a vehicle driven by defendant Joseph P. DePasquale, and plaintiff's vehicle then struck the vehicle directly in front of it.

 Supreme Court properly denied that part of plaintiff's motion seeking to set aside the verdict as against the weight of the evidence insofar as the jury found that EPMI was not negligent.   A fair interpretation of the evidence supports that part of the verdict (see generally Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163), and the conflicting expert opinions raised issues of credibility that the jury was entitled to resolve in EPMI's favor (see Guthrie v. Overmyer, 19 A.D.3d 1169, 1170, 797 N.Y.S.2d 203;  Osinski v. Taefi, 13 A.D.3d 1205, 1207, 787 N.Y.S.2d 591).   We conclude that any error in the court's refusal to charge 17 NYCRR 301.2(a)(3) in conjunction with PJI 2:29 is harmless (see Spinelli v. Licorich, 24 A.D.2d 172, 173-174, 265 N.Y.S.2d 117, affd. 19 N.Y.2d 614, 278 N.Y.S.2d 401, 224 N.E.2d 894).   Finally, plaintiff's contention that the court erred in admitting the testimony of an accident reconstruction expert with respect to the sequence of the accident is moot.   That testimony has no relevance to EPMI's negligence but, rather, concerns only the jury's apportionment of fault between plaintiff and a different defendant (see generally Theodosiou v. CLD Transp. Co., 147 A.D.2d 692, 538 N.Y.S.2d 299;  Bowe v. City of New York, 128 A.D.2d 495, 512 N.Y.S.2d 422).

It is hereby ORDERED that the order and judgment so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: