Alfieri v. Lewis General Tires, Inc.

62 A.D.2d 1135, 404 N.Y.S.2d 193, 1978 N.Y. App. Div. LEXIS 11245

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 7, 1978
• Docket: Appeal No. 1
• Status: Published

Opinion

Judgment unanimously affirmed, without costs. Memorandum: The conflicting evidence as to whether the truck had lights operating at the time of the accident presented a question of credibility to be resolved by the jury. A jury verdict in favor of a defendant should not be set aside as against the weight of the credible evidence unless it plainly appears that the evidence so preponderates in favor of the plaintiff that the finding could not have been reached by any fair interpretation of the evidence (Olsen v Chase Manhattan Bank, 10 AD2d 539, 544, affd 9 NY2d 829; Abdoo v Wentworth, 49 AD2d 1002; Lee v Lesniak, 40 AD2d 756). It cannot be said that the jury’s dismissal of the complaints as against Arthur Cammarono and Lewis General Tires, Inc., could not have been reached by any fair interpretation of the evidence. Further, we conclude that the claimed prejudicial reference made during a colloquy between the attorneys was not prejudicial to appellants inasmuch as there is no clear showing that the reference was to Cammarono and not Joseph Alfieri; additionally, at trial appellant’s counsel failed to make a proper motion for a mistrial. (Appeal from judgment of Monroe Supreme Court—automobile negligence.) Present—Moule, J. P., Cardamone, Simons, Dillon and Hancock, Jr., JJ.