ROCKOWITZ v. GREENSTEIN (2004)

In an action to recover damages for personal injuries, the plaintiffs appeal from an judgment of the Supreme Court, Suffolk County (Molia, J.), entered September 10, 2003, which, upon a jury verdict in favor of the defendants and against them on the issue of liability, dismissed the complaint.

ORDERED that the judgment is affirmed, with costs.

 The plaintiffs contend that the trial court erred in failing to include Vehicle and Traffic Law § 1180(a) and (e), and Pattern Jury Instruction 2:77.1 in its jury charge.   However, this argument is unpreserved for appellate review since the plaintiffs did not request a charge, nor did they take exception to the charge as delivered (see CPLR 4110-b;  Roman v. Parkash, 4 A.D.3d 408, 771 N.Y.S.2d 369;  Smith v. J.C. Penney Co., 300 A.D.2d 466, 750 N.Y.S.2d 897;  Frumusa v. Weyer Constr., 245 A.D.2d 416, 666 N.Y.S.2d 210;  Morrissey v. City of New York, 221 A.D.2d 607, 634 N.Y.S.2d 185).   We decline to exercise our interest of justice jurisdiction since the trial court's failure to include Vehicle and Traffic Law § 1180(a) and (e), and Pattern Jury Instruction 2:77.1 did not constitute a fundamental error (see Rozzoni Design v. Fratelli Ricatto Import & Export Co., 269 A.D.2d 517, 704 N.Y.S.2d 480;  Saleh v. Sears, Roebuck & Co., 119 A.D.2d 652, 500 N.Y.S.2d 796).

 A verdict must be aside as a matter of law where there is “no valid line of reasoning and permissible inferences which could possibly lead rational [persons] to the conclusion reached by the jury on the basis of the evidence presented at trial” (Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145).   Contrary to the plaintiffs' contention, the jury could rationally conclude that the defendant driver was not negligent based on the evidence presented at trial.

 A jury verdict should not be set aside as against the weight of the evidence unless the jury could not have reached its verdict on any fair interpretation of the evidence (see Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163;  Finucane v. Negri, 301 A.D.2d 626, 753 N.Y.S.2d 870;  Nicastro v. Park, 113 A.D.2d 129, 134, 495 N.Y.S.2d 184).   Great deference is accorded to the fact-finding function of the jury, and determinations regarding the credibility of witnesses are for the jury, which had the opportunity to see and hear the witnesses (see Corcoran v. People's Ambulette Serv., 237 A.D.2d 402, 656 N.Y.S.2d 877).   On the evidence presented, the jury reasonably could have reached its verdict based on a fair interpretation of the evidence.

The plaintiffs' remaining contentions are without merit.