SAN GEORGE v. PROWSE

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

Carol SAN GEORGE, Individually and as Mother and Natural Guardian of Carol Ann San George, Plaintiff-Respondent, v. Daniel F. PROWSE and Edward F. Prowse, Defendants-Appellants.

Decided: March 31, 1999

PRESENT:  GREEN, J.P., PINE, WISNER, HURLBUTT and CALLAHAN, JJ. John Wallace, of counsel, Quackenbush Cessario & Hamlin, Buffalo, for defendants-appellants. David P. Feldman of counsel, Buffalo, for plaintiff-respondent.

 Supreme Court erred in granting plaintiff's motion to set aside the verdict.  “A motion to set aside a jury verdict of no cause of action should not be granted unless the preponderance of the evidence in favor of the moving party is so great that the verdict could not have been reached upon any fair interpretation of the evidence” (Dannick v. County of Onondaga, 191 A.D.2d 963, 964, 595 N.Y.S.2d 575;  see, Cohen v. Hallmark Cards, 45 N.Y.2d 493, 498-499, 410 N.Y.S.2d 282, 382 N.E.2d 1145).   A fair interpretation of the evidence supports the jury's determinations that plaintiff's daughter did not sustain a serious injury to her back attributable to the accident (see, Kupfer v. Dalton, 169 A.D.2d 819, 565 N.Y.S.2d 188) and that the surgical scar on her foot does not constitute a significant disfigurement (see, Insurance Law § 5102[d];  Spevak v. Spevak, 213 A.D.2d 622, 622-623, 624 N.Y.S.2d 232).   We note that the court also erred in conditioning a new trial on the parties' failure to settle for a specific sum.  “It is the province of the jury and not the trial court to assess damages” (see, Bolles v. County of Cattaraugus, 162 A.D.2d 975, 559 N.Y.S.2d 189, rearg. granted 166 A.D.2d 931, 573 N.Y.S.2d 1).

Order unanimously reversed on the law without costs, motion denied and verdict reinstated.

MEMORANDUM: