Capone v. Gannon

150 A.D.2d 749, 542 N.Y.S.2d 199, 1989 N.Y. App. Div. LEXIS 7301

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 30, 1989
• Status: Published

Opinion

In an action to recover for damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Copertino, J.), entered November 6, 1987, which, upon a jury verdict finding the defendant William Gannon not at fault in the happening of the accident, is in favor of the defendants.

Ordered that the judgment is affirmed, with costs.

The plaintiff purportedly sustained serious injuries to her neck, back and shoulders when the vehicle she was driving collided with a dump truck at an intersection in the Town of Ronkonkoma.

At trial, the parties gave conflicting accounts of the events leading up to the accident. Notably, the plaintiff testified that the defendant William Gannon failed to stop at a stop sign which controlled traffic at the intersection. Gannon testified that he stopped and yielded the right-of-way before proceeding into the intersection. Both parties testified that the plaintiff’s car had skidded on the snow-covered road. The jury found that the defendant Gannon was not negligent.

We find that the verdict was not against the weight of the evidence. The issue of credibility was resolved against the plaintiff by the jury, whose determination is supported by a fair interpretation of the evidence. As such, it should not be disturbed on this appeal (see, Hershkowitz v Saint Michel, 143 AD2d 809; Nicastro v Park, 113 AD2d 129).

Furthermore, the trial court properly exercised its discretion in denying the plaintiffs application to present a rebuttal witness to disprove Gannon’s testimony. The question of whether to permit the introduction of rebuttal evidence rests within the sound discretion of the trial court and the court’s decision in that regard should not be disturbed on appeal absent a clear abuse or improvident exercise of discretion (see, Saleh v Sears, Roebuck & Co., 119 AD2d 652).

We have reviewed the plaintiffs remaining contentions and find them to be without merit. Bracken, J. P., Sullivan, Balletta and Rosenblatt, JJ., concur.