Gray Line New York Tours, Inc. v. Big Apple Moving & Storage, Inc.

140 A.D.3d 478, 31 N.Y.S.3d 881

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 9, 2016
• Docket: 1425 114496/09
• Status: Published

Opinion

Judgment, Supreme Court, New York County, (Martin Shul-man, J.), entered May 6, 2015, upon a jury verdict in favor of defendants, unanimously affirmed, without costs.

The verdict was legally supported by sufficient evidence and was not against the weight of the evidence (see Cohen v Hallmark Cards, 45 NY2d 493, 498-499 [1978]; Lolik v Big v Supermarkets, 86 NY2d 744, 746 [1995]), and the jury was free to rationally credit the defendant driver’s statement that the accident was caused by unanticipated brake failure, rather than the alternative causes propounded by plaintiffs.

The court properly declined to direct a verdict, enter a judgment notwithstanding the verdict or preclude Big Apple from presenting evidence of a nonnegligent cause of the accident based on statements of its counsel or the pleadings in the third-party complaint because, to the extent facts were stated, the statements were not conclusive and constituted a permissive alternative pleading under CPLR 3014 (see People v Brown, 98 NY2d 226, 232 n 2 [2002]).

We have considered plaintiffs’ remaining arguments and find them unavailing.

Concur — Mazzarelli, J.P., Acosta, Saxe, Kapnick and Kahn, JJ.