WERNER v. (and a third-party action). (2001)

In an action to recover damages for personal injuries, the defendant appeals from a judgment of the Supreme Court, Nassau County (McCarty, J.), entered October 26, 1999, which, upon a jury verdict, is in favor of the plaintiff and against her in the principal sum of $365,000.97.

ORDERED that the judgment is reversed, on the facts, and the matter is remitted to the Supreme Court for a new trial, with costs to abide the event.

The plaintiff was injured when he and a co-worker attempted to extricate the plaintiff's vehicle, which had become lodged on a metal pipe in the appellant's parking lot.   In attempting to move the vehicle, the plaintiff placed his hand beneath the bumper of the vehicle and tried to lift it over the pipe while the co-worker moved the vehicle.   As the vehicle moved, the plaintiff's finger became wedged between the metal pipe and the car bumper.

On these facts, the jury's finding that the plaintiff was not negligent was against the weight of the evidence.   No fair interpretation of the evidence supports the finding that the plaintiff, who elected to lift the front bumper while his co-worker reversed the car, was free from negligence (see, Cohen v. Hallmark Cards, 45 N.Y.2d 493, 410 N.Y.S.2d 282, 382 N.E.2d 1145;  Nicastro v. Park, 113 A.D.2d 129, 495 N.Y.S.2d 184).