Barabash v. Castellano

Opinion

Barabash v Castellano

2026 NY Slip Op 05070

August 26, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Ivan Barabash, appellant,

v

Nicholas Castellano, et al., respondents.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 26, 2026

2024-09549, (Index No. 519478/19)

Francesca E. Connolly, J.P.

Barry E. Warhit

Helen Voutsinas

Donna-Marie E. Golia, JJ.

Wingate, Russotti, Shapiro, Moses & Halperin, LLP (Lisa M. Comeau, Garden City, NY, of counsel), for appellant.

Cheven, Keely & Hatzis (Thomas Torto, New York, NY [Jason Levine], of counsel), for respondents.

[*1]

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Aaron D. Maslow, J.), dated June 13, 2024. The judgment, upon the denial of the plaintiff's motion pursuant to CPLR 4401, made at the close of evidence, for judgment as a matter of law on the issue of liability, upon a jury verdict in favor of the defendants and against the plaintiff on the issue of liability, and upon the denial of the plaintiff's motion pursuant to CPLR 4404(a) to set aside the jury verdict as contrary to the weight of the evidence and for a new trial, is in favor of the defendants and against the plaintiff dismissing the amended complaint.

ORDERED that the judgment is affirmed, with costs.

A vehicle owned and operated by the plaintiff was involved in a motor vehicle accident at the intersection of Leverett Avenue and Abingdon Avenue in Staten Island with a dump truck operated by the defendant Nicholas Castellano and owned by the defendant Triangle Excavators of New York, Inc. At the time of the accident, the plaintiff's vehicle was traveling on Leverett Avenue, which was not controlled by a stop sign at the intersection. The defendants' dump truck was traveling on Abingdon Avenue, which was controlled by a stop sign. The plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained in the accident.

At a jury trial, Castellano testified that he stopped the dump truck at the stop sign and, because his view of traffic on Leverett Avenue was blocked by cars parked on the corner near the intersection, he inched out into the intersection. According to Castellano, when he observed the plaintiff's vehicle approaching from approximately 40 to 50 feet away, he stopped the dump truck in the intersection, and the dump truck was struck by the plaintiff's vehicle. The plaintiff testified that the defendants' dump truck was moving at a speed of approximately 10 to 15 miles per hour through the intersection when he observed it, approximately 2 seconds before the impact, and that he applied his brakes and sounded the horn prior to the impact.

At the close of evidence, the plaintiff moved pursuant to CPLR 4401 for judgment [*2]as a matter of law on the issue of liability. The Supreme Court denied the motion. Thereafter, the jury rendered a verdict finding that Castellano was not negligent in the operation of the dump truck. The plaintiff moved pursuant to CPLR 4404(a) to set aside the jury verdict as contrary to the weight of the evidence and for a new trial. The court denied the motion. A judgment was entered in favor of the defendants and against the plaintiff dismissing the amended complaint. The plaintiff appeals.

The Supreme Court properly denied the plaintiff's motion pursuant to CPLR 4401, made at the close of evidence, for judgment as a matter of law on the issue of liability. "'A motion for judgment as a matter of law pursuant to CPLR 4401 . . . may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nonmoving party'" (Matter of Biondo, 215 AD3d 675, 676, quoting Hiotidis v Ramuni, 161 AD3d 955, 956; see Angeles v County of Suffolk, 222 AD3d 923, 925; Williams v Ncho, 212 AD3d 687, 688). "In considering such a motion, the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant" (Williams v Ncho, 212 AD3d at 688-689 [internal quotation marks omitted]; see Feldman v Knack, 170 AD3d 667, 669; Hiotidis v Ramuni, 161 AD3d at 956). Here, the evidence adduced at trial, viewed in the light most favorable to the defendants, did not establish that there was no rational process by which the jury could find in favor of the defendants (see Blair v Coleman, 211 AD3d 671, 673; Aponte v New York City Hous. Auth., 197 AD3d 1283, 1285).

The Supreme Court also properly denied the plaintiff's motion pursuant to CPLR 4404(a) to set aside the jury verdict as contrary to the weight of the evidence and for a new trial. "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" (Thomas v New York City Tr. Auth., 242 AD3d 1246, 1247 [internal quotation marks omitted]; see Traca v Catapano Engg. & Architecture, P.C., 237 AD3d 1134, 1135; Angeles v County of Suffolk, 222 AD3d at 925). "'It is for the jury to make determinations as to the credibility of the witnesses, and great deference in this regard is accorded to the jury, which had the opportunity to see and hear the witnesses'" (Thomas v New York City Tr. Auth., 242 AD3d at 1247, quoting Angieri v Musso, 225 AD3d 43, 51).

Here, based on the evidence, it was reasonable for the jury to adopt Castellano's version of the events preceding the accident (see Hannays v Miskiewicz, 240 AD3d 582, 584; Pen v Wheels, Inc., 231 AD3d 848, 849). Moreover, the conflicting testimony about the happening of the accident presented an issue of credibility for the jury to resolve, and we discern no basis to disturb the jury's determination to credit Castellano's testimony. Thus, the jury's verdict was not contrary to the weight of the evidence (see Hannays v Miskiewicz, 240 AD3d at 584; Pen v Wheels, Inc., 231 AD3d at 849). Accordingly, the Supreme Court properly denied the plaintiff's motion pursuant to CPLR 4404(a) to set aside the verdict as contrary to the weight of the evidence and for a new trial.

CONNOLLY, J.P., WARHIT, VOUTSINAS and GOLIA, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court