Guarnier v. American Dredging Co.

179 A.D.2d 392

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 9, 1992
• Status: Published

Opinion

Appeal from an order of the same Court and same Justice entered May 31, 1989, which determined, inter alia, that plaintiff had obtained in personam jurisdiction over defendant, is dismissed as subsumed, without costs.

This appeal brings for review the third and fourth jury trials in this protracted negligence action brought by a seaman to recover damages for a broken wrist sustained in 1977. (See, Guarnier v American Dredging Co., 145 AD2d 341; 151 AD2d 1056; 172 AD2d 220.)

The Record does not support plaintiffs claim that the evidence is so overwhelming or preponderates so much in his favor as to warrant this Court to exercise its discretion to substitute its judgment for that of the trier of fact which is in the best position to assess the evidence presented (Yalkut v City of New York, 162 AD2d 185). Conflicting evidence was adduced at trial concerning whether the stuck shackle on board the barge was unfit or defective, and as to the difference in height between the barge and dredge. These factual matters are best left for resolution by the jury and no basis exists to disturb its findings. Concur — Rosenberger, J. P., Wallach, Ross and Smith, JJ.