PEN v. Thomas Abate, et al., respondents. (2024)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Richmond County (Ralph J. Porzio, J.), dated August 23, 2022.  The order denied the plaintiff's motion pursuant to CPLR 4404(a) to set aside a jury verdict in favor of the defendant Thomas Abate on the issue of liability as contrary to the weight of the evidence and for a new trial.

ORDERED that the order is affirmed, with costs.

The plaintiff allegedly was injured while riding an electric bicycle when it came into contact with a motor vehicle operated by the defendant Thomas Abate.  The plaintiff commenced this action against, among others, Abate, to recover damages for personal injuries.  The action proceeded to a jury trial on the issue of liability, after which the jury rendered a verdict in favor of Abate, based upon a finding that he was not negligent.  The plaintiff moved pursuant to CPLR 4404(a) to set aside the verdict on the issue of liability as contrary to the weight of the evidence and for a new trial.  The Supreme Court denied the motion, and the plaintiff appeals.

A jury verdict may be set aside as contrary to the weight of the evidence only if “the evidence so preponderated in favor of the [moving party] that the verdict could not have been reached on any fair interpretation of the evidence” (Lolik v. Big v. Supermarkets, Inc., 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163 [alterations and internal quotation marks omitted];  see Rucigay v. Wyckoff Hgts. Med. Ctr., 194 A.D.3d 865, 868, 149 N.Y.S.3d 148;  Glynn v. Altobelli, 181 A.D.3d 567, 569, 119 N.Y.S.3d 167).  The consequence of a determination that a jury verdict in a civil action is contrary to the weight of the evidence is a new trial (see CPLR 4404[a]).  “Issues of credibility are for the jury, which had the opportunity to observe the witnesses and the evidence” (Lalla v. Connolly, 17 A.D.3d 322, 323, 791 N.Y.S.2d 845;  see Glynn v. Altobelli, 181 A.D.3d at 569, 119 N.Y.S.3d 167).  “ ‘[T]he discretionary power to set aside a jury verdict and order a new trial must be exercised with considerable caution, for in the absence of indications that substantial justice has not been done, a successful litigant is entitled to the benefits of a favorable jury verdict’ ” (Glynn v. Altobelli, 181 A.D.3d at 570, 119 N.Y.S.3d 167, quoting Nicastro v. Park, 113 A.D.2d 129, 133, 495 N.Y.S.2d 184).

Here, based on the evidence, it was reasonable for the jury to adopt Abate's version of the events preceding the accident.  Moreover, the parties presented conflicting testimony about the happening of the accident, and we discern no basis to disturb the jury's determination to credit Abate's testimony and to discredit the plaintiff's testimony.  Thus, the jury's verdict was not contrary to the weight of the evidence.

Contrary to the plaintiff's further contention, the record contains no evidence of juror confusion (see Young Mee Oh v. Koon, 140 A.D.3d 861, 862, 35 N.Y.S.3d 116).

Accordingly, the Supreme Court properly denied the plaintiff's motion pursuant to CPLR 4404(a) to set aside the verdict and for a new trial.

BARROS, J.P., CHAMBERS, VOUTSINAS and VENTURA, JJ., concur.