ADIKA v. NEW YORK CITY TRANSIT AUTHORITY (2021)

Judgment, Supreme Court, New York County (Shlomo S. Hagler, J.), entered November 9, 2020, dismissing the complaint, and bringing up for review an order, same court and Justice, entered September 22, 2020, which denied plaintiff's motion to set aside the verdict and for a new trial, unanimously affirmed, without costs.  Appeal from the above order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

The court properly denied plaintiff's motion to set aside the verdict and for a new trial.  Contrary to plaintiff's contention that the verdict was against the weight of the evidence, the jury's finding was based on a fair interpretation of the evidence presented at trial (see Lolik v. Big v Supermarkets, Inc., 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163 [1995]).  The evidence indicated that plaintiff gave varying accounts of what caused her to fall, and there was testimony from the bus driver and the bus inspector that the bus doors did not open directly in front of the tree well, where plaintiff testified she fell.  Since the case turned on witness credibility, the court properly declined to disturb the verdict (see High Value Trading, LLC v. Shaoul, 168 A.D.3d 641, 642, 93 N.Y.S.3d 306 [1st Dept. 2019], lv denied 33 N.Y.3d 910, 2019 WL 2624037 [2019]).

The court providently exercised its discretion in redacting the portion of the bus driver's incident report that referred to plaintiff's statement to the bus inspector.  Although defendants did accuse plaintiff of recent fabrication, the hearsay statement did not refute this assertion because plaintiff's reported statement did not assert that she fell on the tree well, and she had a motive to fabricate the moment she fell (see Boolbol v. Paradigm Mgt. Group, LLC, 144 A.D.3d 577, 40 N.Y.S.3d 906 [1st Dept. 2016], lv denied 29 N.Y.3d 901, 2017 WL 1093699 [2017]).  Even if it was error to redact the report, such error was harmless since numerous references to the content of the redacted portion of the report were made during the trial so that the jury was likely aware of its content.

We find no misconduct on the part of defendants’ counsel, and plaintiff failed to preserve the issue by timely moving for a mistrial prior to the jury verdict (see Virgo v. Bonavilla, 49 N.Y.2d 982, 984, 429 N.Y.S.2d 165, 406 N.E.2d 1059 [1980]).  Counsel is afforded wide latitude in summation to comment on and characterize the evidence (see Selzer v. New York City Tr. Auth., 100 A.D.3d 157, 163, 952 N.Y.S.2d 26 [1st Dept. 2012]).