Frank v. Nowicki

270 A.D.2d 454, 706 N.Y.S.2d 333, 2000 N.Y. App. Div. LEXIS 3178

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 27, 2000
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the defendant appeals from a judgment of the Supreme Court, Orange County (Peter C. Patsalos, J.), entered December 10, 1998, which, after a nonjury trial at which she was found 100% at fault in the happening of the accident, is in favor of the plaintiff and against her in the principal sum of $90,000.

Ordered that the judgment is affirmed, with costs.

The plaintiff commenced this action to recover damages for personal injuries allegedly resulting from an automobile collision. After a nonjury trial, the court, inter alia, found that the defendant was 100% at fault in the happening of the accident and that the accident was the proximate cause of the plaintiff’s injuries.

The defendant argues that the verdict should be set aside because it was against the weight of the evidence. We disagree and conclude that the verdict was not against the weight of the credible evidence (see, Buck v Cimino, 243 AD2d 681; Greenberg v Behlen, 220 AD2d 720; Nicastro v Park, 113 AD2d 129).

The court providently exercised its discretion in granting the plaintiff’s motion to amend the pleadings to conform to the proof since there was no prejudice (see, Mohammed v City of New York, 242 AD2d 321; Weisberg v My Mill Holding Corp., 205 AD2d 756; Felix v Lettre, 204 AD2d 679; Rothstein v City Univ., 194 AD2d 533).

The defendant’s remaining contentions are without merit (see, Hambsch v New York City Tr. Auth., 63 NY2d 723; Doherty v City of New York, 228 AD2d 544; Akerman v City of New York, 226 AD2d 326). Santucci, J. P., Joy, Thompson and Gold-stein, JJ., concur.