ORTEGA v. TSOI LAI TING

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

Rafael ORTEGA, Respondent, v. Anita TSOI LAI TING, Appellant.

2017–05342

Decided: May 22, 2019

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, CHERYL E. CHAMBERS, ROBERT J. MILLER, JJ. Tusa & Levin, Smithtown, N.Y. (Robert P. Tusa of counsel), for appellant. Bergman Bergman Fields & Lamonsoff, LLP, Hicksville, N.Y. (Michael E. Bergman, Seth Fields, and Julie T. Mark of counsel), for respondent.

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

While riding his bicycle, the plaintiff was struck and injured by a vehicle operated by the defendant.  The plaintiff commenced this action to recover damages for personal injuries allegedly resulting from the accident.  At trial, the plaintiff offered evidence that, as a result of the accident, he had no memory of the event, and the Supreme Court gave a Noseworthy charge (see Noseworthy v. City of New York, 298 N.Y. 76, 80, 80 N.E.2d 744).  The plaintiff testified that, while he did not recall the accident, he did recall leaving work and getting on his bicycle with the intent of taking the route he usually took home, which route he detailed, explaining that he took the same route every day, except for when he took the bus.  While that route would have had the plaintiff traveling with traffic at the time of the accident, the defendant testified, inter alia, that the plaintiff was traveling against traffic.  The jury returned a verdict in favor of the plaintiff on the issue of liability.  The defendant moved pursuant to CPLR 4404(a) to set aside the jury verdict and for judgment as a matter of law or, in the alternative, to set aside the verdict as contrary to the weight of the evidence and for a new trial on the issue of liability.  The court denied the motion, and the defendant appeals.

The “setting aside of a jury verdict as a matter of law and the setting aside of a jury verdict as contrary to the weight of the evidence involve two inquiries and two different standards” (Ramirez v. Mezzacappa, 121 A.D.3d 770, 772, 994 N.Y.S.2d 627;  see Cohen v. Hallmark Cards, 45 N.Y.2d 493, 498, 410 N.Y.S.2d 282, 382 N.E.2d 1145).  A motion pursuant to CPLR 4404 to set aside a jury verdict and for judgment as a matter of law “will be granted where there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusions reached by the jury on the basis of the evidence presented at trial” (Frank v. Gengler, 151 A.D.3d 696, 697, 56 N.Y.S.3d 260;  see Century Sur. Co. v. All In One Roofing, LLC, 154 A.D.3d 803, 807, 63 N.Y.S.3d 406).  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” (Wallace v. City of New York, 108 A.D.3d 760, 761, 970 N.Y.S.2d 237).

We agree with the Supreme Court's denial of that branch of the defendant's motion pursuant to CPLR 4404(a) which was to set aside the verdict and for judgment as a matter of law, as there was a valid line of reasoning and permissible inferences which could have led a rational jury to conclude that the defendant's negligence caused the plaintiff's injuries (see Shellkopf v. Bernfeld, 162 A.D.3d 1086, 1086–1087, 79 N.Y.S.3d 668).  The jury could have credited the plaintiff's testimony as to his habit or routine practice, as to which the plaintiff submitted sufficient evidence “to allow the inference of its persistence” at the time of this accident (Gucciardi v. New Chopsticks House, Inc., 133 A.D.3d 633, 634, 19 N.Y.S.3d 80 [internal quotation marks omitted];  see Greenberg v. New York City Tr. Auth., 290 A.D.2d 412, 736 N.Y.S.2d 73;  see also Simion v. Franklin Ctr. for Rehabilitation & Nursing, Inc., 157 A.D.3d 738, 739, 69 N.Y.S.3d 64), while also making reasonable inferences based on the defendant's own testimony that, inter alia, the defendant failed to see that which through proper use of the driver's senses she should have seen, for which the defendant could be found liable even if the plaintiff, as the defendant here argues, could not establish that he obeyed all the rules of the road (see Rojas v. Solis, 154 A.D.3d 985, 62 N.Y.S.3d 511;  Barchella v. Moser, 156 A.D.2d 324, 325, 548 N.Y.S.2d 522;  Bullock v. Calabretta, 119 A.D.3d 884, 884, 989 N.Y.S.2d 862).

We also agree with the Supreme Court's denial of that branch of the defendant's motion which was to set aside the verdict as contrary to the weight of the evidence and for a new trial.  A fair interpretation of the evidence could have led the jury to reach its verdict that the defendant's negligence caused the accident (see Shellkopf v. Bernfeld, 162 A.D.3d at 1086–1087, 79 N.Y.S.3d 668;  Wallace v. City of New York, 108 A.D.3d at 761, 970 N.Y.S.2d 237;  Barchella v. Moser, 156 A.D.2d at 325, 548 N.Y.S.2d 522).

Accordingly, we agree with the Supreme Court's denial of the defendant's motion pursuant to CPLR 4404(a).

RIVERA, J.P., BALKIN, CHAMBERS and MILLER, JJ., concur.

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