DI SALVO v. HILLER

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Supreme Court, Appellate Division, Fourth Department, New York.

Samuel DI SALVO and Michele Di Salvo, Plaintiffs-Respondents, v. Carrie A. HILLER and Jim Culligan, Inc., Defendants-Appellants.

Decided: December 31, 2003

PRESENT:  PIGOTT, JR., P.J., HURLBUTT, SCUDDER, KEHOE, AND GORSKI, JJ. Bouvier, O'Connor, LLP, Buffalo (Norman E.S. Greene of Counsel), for Defendant-Appellant Carrie A. Hiller. Law Offices of Charles G. Di Pasquale, Buffalo (Kevin E. Ketchum of Counsel), for Defendant-Appellant Jim Culligan, Inc. Nicholas, Perot, Smith, Bernhardt & Zosh, P.C., Akron (Alan P. Mc Cracken of Counsel), for Plaintiffs-Respondents.

Defendants appeal from an order granting plaintiffs' motion pursuant to CPLR 4404 seeking to set aside the jury verdict finding that Carrie A. Hiller (defendant) was not negligent with respect to a motor vehicle accident wherein a vehicle driven by Samuel DiSalvo (plaintiff) struck a vehicle driven by defendant, and owned by defendant Jim Culligan, Inc. while defendant was making a left-hand turn in front of plaintiff's vehicle.   Supreme Court erred in determining that the verdict is against the weight of the evidence.   Viewing the evidence in the light most favorable to defendants (see Greene v. Frontier Cent. School Dist., 214 A.D.2d 947, 948, 627 N.Y.S.2d 491), we conclude that it does not so preponderate in favor of plaintiffs that the verdict could not have been reached upon 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;  Miller v. Reynolds, 298 A.D.2d 836, 837, 747 N.Y.S.2d 873).   It is undisputed that defendant, who was traveling south, attempted to make a left-hand turn at an intersection while plaintiff was traveling north towards the intersection.   Defendant testified, however, that the left turn signal on plaintiff's vehicle was activated and that both she and plaintiff “yielded” at the intersection.   Defendant further testified that, based upon those observations, she believed that plaintiff was going to execute a left-hand turn at the intersection, and therefore she proceeded to do so as well.   Given defendant's testimony, “it cannot be said that the verdict * * * could not have been reached upon any fair interpretation of the evidence” (Miller, 298 A.D.2d at 837, 747 N.Y.S.2d 873).   We therefore reverse the order, deny plaintiffs' motion and reinstate the verdict in favor of defendants.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied and the verdict is reinstated.

MEMORANDUM: