MORGAN v. NEW YORK CITY TRANSIT AUTHORITY (2005)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Kings County (Bunyan, J.), entered January 16, 2004, which, upon a jury verdict, is in favor of the defendant and against them dismissing the complaint.

ORDERED that the judgment is affirmed, with costs.

The verdict finding that the injured plaintiff did not sustain a serious injury as a result of the bus stopping short was supported by sufficient evidence in the record and was a fair interpretation of the evidence (see Cohen v. Hallmark Cards, 45 N.Y.2d 493, 498-499, 410 N.Y.S.2d 282, 382 N.E.2d 1145;  Nicastro v. Park, 113 A.D.2d 129, 134, 495 N.Y.S.2d 184).   The jury was free to weigh and discredit the infant plaintiff's testimony (see Vasquez v. Jacobowitz, 284 A.D.2d 326, 726 N.Y.S.2d 128;  White v. Rubinstein, 255 A.D.2d 378, 679 N.Y.S.2d 668), and resolve the disputed issues of fact in favor of the defendant;  as its finding was supported by the record, there is no reason to disturb the verdict (see Evers v. Carroll, 17 A.D.3d 629, 794 N.Y.S.2d 398;  Schiskie v. Fernan, 277 A.D.2d 441, 716 N.Y.S.2d 702;  Alterescu v. Mills, 216 A.D.2d 345, 628 N.Y.S.2d 354;  cf. Stanley v. Lallis, 247 A.D.2d 462, 668 N.Y.S.2d 668;  Fogliani v. Salvato, 205 A.D.2d 581, 613 N.Y.S.2d 415).

The Supreme Court properly denied the plaintiffs' request to compel the defendant's expert to testify at the trial, even though the expert had been subpoenaed by the plaintiffs (see CPLR 2308[a];  Metropolitan N.Y. Coordinating Council on Jewish Poverty v. FGP Bush Term., 1 A.D.3d 168, 768 N.Y.S.2d 190;  People ex rel. Kraushaar Bros. & Co. v. Thorpe, 296 N.Y. 223, 224, 72 N.E.2d 165).