MORGAN v. NATIONAL CITY BANK

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

Joel M. MORGAN, Plaintiff-Appellant, v. NATIONAL CITY BANK, Susan B. Schwartz and Terri O. Goldberg, Defendants-Respondents.  (Appeal No. 2.)

Decided: September 29, 2006

PRESENT:  GORSKI, J.P., MARTOCHE, GREEN, PINE, AND HAYES, JJ. Gibson, McAskill & Crosby, LLP, Buffalo (Kristin A. Tisci of Counsel), for Plaintiff-Appellant. Sliwa & Lane, Buffalo (Daniel C. McGillicuddy of Counsel), for Defendant-Respondent National City Bank. Kenney Shelton Liptak Nowak LLP, Buffalo (Wendy A. Scott of Counsel), for Defendants-Respondents Susan B. Schwartz and Terri O. Goldberg.

Plaintiff was injured in an automobile accident and commenced this action seeking recovery under several categories of “serious injury” as defined in Insurance Law § 5102(d).  The jury returned a verdict finding that plaintiff did not sustain a serious injury under any of the categories alleged.   Supreme Court denied plaintiff's motion to set aside the verdict and a judgment was entered upon the jury verdict.   We affirm.

 The standard for determining whether a verdict is against the weight of the evidence is whether the evidence so preponderated in favor of the moving party that the verdict could not have been reached under 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).   The determination to set aside a jury verdict is addressed to the sound discretion of the court, and we are careful not to unnecessarily interfere with the fact-finding function of the jury to a degree that amounts to a usurpation of the jury's duty (see McLoughlin v. Hamburg Cent. School Dist., 227 A.D.2d 951, 643 N.Y.S.2d 845, lv. denied 88 N.Y.2d 813, 649 N.Y.S.2d 380, 672 N.E.2d 606).   Here, both sides presented the testimony of medical experts and lay witnesses regarding the nature of the injuries.   That testimony presented issues of fact and credibility and there is no reason for us to disturb the jury's resolution of those issues (see Radish v. DeGraff Mem. Hosp., 291 A.D.2d 873, 738 N.Y.S.2d 780;  Gallmeyer v. Sullivan [Appeal No. 1], 245 A.D.2d 1024, 666 N.Y.S.2d 63).   The verdict is one that reasonable jurors could have rendered on the basis of the testimony and, as such, is not against the weight of the evidence (see Petrovski v. Fornes, 125 A.D.2d 972, 510 N.Y.S.2d 366, lv. denied 69 N.Y.2d 608, 514 N.Y.S.2d 1026, 507 N.E.2d 322).

 We further conclude that the court did not err in allowing defense counsel to question plaintiff regarding plaintiff's prior criminal convictions.   A civil litigant is granted broad authority to use the criminal convictions of a witness to impeach the credibility of that witness and a court may, in its discretion, permit the use of a prior conviction of driving while intoxicated to impeach the credibility of a party who testifies at trial (see Sauer v. Diaz, 300 A.D.2d 1136, 1137, 753 N.Y.S.2d 631).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is affirmed without costs.

MEMORANDUM:

All concur, HAYES, J., not participating.