BASMA v. FERVAN

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

Louana K. BASMA, appellant, v. Nicole R. FERVAN, et al., respondents.

Decided: September 27, 1999

SONDRA MILLER, J.P., FRED T. SANTUCCI, GABRIEL M. KRAUSMAN and ANITA R. FLORIO, JJ. Anthony J. Scarcella, P.C., White Plains, N.Y. (M. Sean Duffy of counsel), for appellant. Mead, Hecht, Conklin & Gallagher, White Plains, N.Y. (Elizabeth M. Hecht of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Bellantoni, J.), dated March 11, 1998, which denied her motion pursuant to CPLR 4404(a) to set aside a jury verdict in favor of the defendants as against the weight of the evidence.

ORDERED that the order is affirmed, with costs.

 Contrary to the plaintiff's contention, the Supreme Court properly denied her motion to set aside the jury verdict finding that the defendants were not negligent.   It is well settled that a verdict should not be set aside as against the weight of the evidence unless the evidence preponderates so heavily in favor of the moving party that the verdict could not have been reached on any fair interpretation of the evidence (see, Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 631 N.Y.S.2d 122, 655 N.E.2d 163;  Calafiura-Ehrlich v. Spiros Systems, 259 A.D.2d 580, 686 N.Y.S.2d 769;  Nicastro v. Park, 113 A.D.2d 129, 495 N.Y.S.2d 184).   Here, the jury “was presented with sharp issues of credibility and the accuracy of the witnesses' testimony was for its determination” (Albero v. Rogers, 143 A.D.2d 246, 247, 532 N.Y.S.2d 33;  see, El-Houayek v. Hertz Penske Truck Leasing Corp., 233 A.D.2d 478, 650 N.Y.S.2d 969;  Shachnow v. Myers, 229 A.D.2d 432, 433, 645 N.Y.S.2d 97).   Given the conflicting testimony and the inconsistencies in the plaintiff's version of events, the jury could have fairly concluded that the plaintiff's vehicle was not visible to the defendant Nicole Fervan when Fervan crossed the curved and graded roadway in order to reach the driveway of her residence.   Under these circumstances, the verdict finding the plaintiff responsible for the collision, which occurred when Fervan's vehicle was almost entirely in her driveway, was not against the weight of the evidence.

MEMORANDUM BY THE COURT.

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