Ithier v. Harnden

Appellate Division of the Supreme Court of New York

Ithier v. Harnden

41 A.D.3d 1198, 837 N.Y.S.2d 881

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 8, 2007

StatusPublished

Cited by1 cases

This text of 41 A.D.3d 1198 (Ithier v. Harnden) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ithier v. Harnden, 41 A.D.3d 1198, 837 N.Y.S.2d 881 (N.Y. Ct. App. 2007).

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Opinion

Appeal from an order of the Supreme Court, Erie County (Kevin M. Dillon, J.), entered October 28, 2005 in a personal injury action. The order, among other things, denied plaintiffs motion seeking to set aside the jury verdict and seeking judgment in plaintiff’s favor or, alternatively, a new trial.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly denied plaintiffs motion seeking to set aside the verdict in favor of defendants and seeking judgment in plaintiff’s favor or, alternatively, a new trial. We agree with defendants that plaintiff is not entitled to judgment as a matter of law because the evidence raised “issues of fact and credibility to be resolved by the jury” (Dolitsky v Bay Isle Oil Co., 111 AD2d 366, 366 [1985]), and there is a valid line of reasoning and permissible inferences that could lead rational persons to the jury’s conclusion, based on the evidence at trial, that Kevin Harnden, Jr. (defendant) was not negligent (see generally Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). The court also properly refused to set aside the jury verdict as against the weight of the evidence and to grant a new trial because a fair interpretation of the evidence supports the verdict (see Teneriello v Travelers Cos., 264 AD2d 772 [1999], lv denied 94 NY2d 758 [2000]; Nicastro v Park, 113 AD2d 129, 134 [1985]). Although we agree with plaintiff that the court erred in allowing the police officer who investigated the accident to testify with respect to defendant’s self-serving hearsay statement (see Casey v Tierno, 127 AD2d 727, 728 [1987]; Depena v [1199]*1199Metropolitan Ambulance & First Aid Corp., 1 Misc 3d 13, 14 [2003]), we conclude that the error is harmless (see generally Beeley v Spencer [appeal No. 5], 309 AD2d 1303, 1305-1306 [2003]). Present—Scudder, P.J., Gorski, Martoche, Smith and Green, JJ.

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Appeal from an order of the Supreme Court, Erie County (Kevin M. Dillon, J.), entered October 28, 2005 in a personal injury action. The order, among other things, denied plaintiffs motion seeking to set aside the jury verdict and seeking judgment in plaintiff’s favor or, alternatively, a new trial.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly denied plaintiffs motion seeking to set aside the verdict in favor of defendants and seeking judgment in plaintiff’s favor or, alternatively, a new trial. We agree with defendants that plaintiff is not entitled to judgment as a matter of law because the evidence raised “issues of fact and credibility to be resolved by the jury” (Dolitsky v Bay Isle Oil Co., 111 AD2d 366, 366 [1985]), and there is a valid line of reasoning and permissible inferences that could lead rational persons to the jury’s conclusion, based on the evidence at trial, that Kevin Harnden, Jr. (defendant) was not negligent (see generally Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). The court also properly refused to set aside the jury verdict as against the weight of the evidence and to grant a new trial because a fair interpretation of the evidence supports the verdict (see Teneriello v Travelers Cos., 264 AD2d 772 [1999], lv denied 94 NY2d 758 [2000]; Nicastro v Park, 113 AD2d 129, 134 [1985]). Although we agree with plaintiff that the court erred in allowing the police officer who investigated the accident to testify with respect to defendant’s self-serving hearsay statement (see Casey v Tierno, 127 AD2d 727, 728 [1987]; Depena v [1199]*1199Metropolitan Ambulance & First Aid Corp., 1 Misc 3d 13, 14 [2003]), we conclude that the error is harmless (see generally Beeley v Spencer [appeal No. 5], 309 AD2d 1303, 1305-1306 [2003]). Present—Scudder, P.J., Gorski, Martoche, Smith and Green, JJ.

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Bluebook (online)

41 A.D.3d 1198, 837 N.Y.S.2d 881, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ithier-v-harnden-nyappdiv-2007.

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