Harkins v. Felice's of Patchogue, Inc.

60 A.D.2d 880, 401 N.Y.S.2d 281, 1978 N.Y. App. Div. LEXIS 9922

Opinion

In a negligence action to recover damages for personal injuries, etc., defendant appeals from an order of the Supreme Court, Suffolk County, dated May 25, 1977, which (1) set aside a unanimous jury verdict in its favor following a trial limited to the issue of liability only and (2) granted a new trial, on the ground that the verdict was against the weight of the evidence. Order reversed, with costs, and verdict reinstated. CPLR 4404 (subd [a]) does not permit a Trial Judge to substitute his opinion for that of the jury when a fair interpretation of the evidence would support the verdict in favor of the defendant (Roberts v Ausable Chasm Co., 47 AD2d 979). Although defendant-appellant did not present any affirmative evidence relating to the injured plaintiff’s fall, the latter’s version of how the accident occurred was successfully impeached by defendant with prior inconsistent testimony at her examination before trial. Since the jury was thus entitled to reject the injured plaintiff’s testimony in whole or in part, and since there were no other witnesses to the actual fall, the jury was reasonably entitled to conclude that plaintiffs failed to sustain their burden of proof on the issue of liability. Mollen, P. J., Suozzi, Cohalan and Hawkins, JJ., concur.