Joseph Fratello, respondent, v. County of Suffolk, et al., appellants. (2012)

Argued—May 10, 2012

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Suffolk County (Rebolini, J.), dated June 23, 2011, which, upon a jury verdict finding that the defendants were not negligent, granted the plaintiff's motion pursuant to CPLR 4404(a) to set aside the verdict as contrary to the weight of the evidence and for a new trial.

ORDERED that the order is affirmed, with costs.

A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence (see Lolik v. Big v. Supermarkets, 86 N.Y.2d 744;  Cohen v. Hallmark Cards, 45 N.Y.2d 493, 498;  Nicastro v. Park, 113 A.D.2d 129).   The jury's determination that the defendant bus driver, Thomas Wilson, was not negligent was contrary to the weight of the evidence.   The evidence adduced at trial demonstrated that Wilson violated Vehicle and Traffic Law § 1122(a) by traveling on the shoulder of Montauk Highway and overtaking vehicles proceeding in the same direction while passing on the right.   A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law (see Vainer v. DiSalvo, 79 AD3d 1023;  Botero v. Erraez, 289 A.D.2d 274).

Accordingly, the Supreme Court properly granted the plaintiff's motion pursuant to CPLR 4404(a) to set aside the verdict as contrary to the weight of the evidence and for a new trial.

ANGIOLILLO, J.P., FLORIO, BELEN and CHAMBERS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court