Livreri v. O'Connell

Appellate Division of the Supreme Court of New York

Livreri v. O'Connell

188 A.D.2d 279

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

DecidedDecember 1, 1992

StatusPublished

This text of 188 A.D.2d 279 (Livreri v. O'Connell) 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

Livreri v. O'Connell, 188 A.D.2d 279 (N.Y. Ct. App. 1992).

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Opinion

Judgment, Supreme Court, Bronx County (Philip C. Modesto, J.), entered October 11, 1991, in favor of plaintiff in the aggregate sum of $137,604.00, unanimously affirmed, with costs.

Defendants-appellants urge that because the verdict in this action brought to recover for personal injuries was against the weight of the credible evidence, the trial court erred in denying their motion to set aside the verdict. However, based on the record before this Court, it is clear that the jury reasonably determined that defendant O’Connell was negligent in backing up the motor vehicle which struck plaintiff, causing her to fall and sustain injuries. Accordingly, there is no basis to overturn the jury’s verdict (see, Kimberly-Clark Corp. v Power Auth., 35 AD2d 330, 335). Further, no view of the evidence demonstrates any comparative negligence on the part of plaintiff.

In conclusion, we note that the trial court properly gave a missing witness charge concerning the owner and/or manager of the gas station since he was present at, or immediately after, the accident, and was clearly knowledgeable about several material issues in this case (see, People v Gonzalez, 68 NY2d 424, 427). Concur — Milonas, J. P., Ellerin, Ross, Asch and Kassal, JJ.

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Judgment, Supreme Court, Bronx County (Philip C. Modesto, J.), entered October 11, 1991, in favor of plaintiff in the aggregate sum of $137,604.00, unanimously affirmed, with costs.

Defendants-appellants urge that because the verdict in this action brought to recover for personal injuries was against the weight of the credible evidence, the trial court erred in denying their motion to set aside the verdict. However, based on the record before this Court, it is clear that the jury reasonably determined that defendant O’Connell was negligent in backing up the motor vehicle which struck plaintiff, causing her to fall and sustain injuries. Accordingly, there is no basis to overturn the jury’s verdict (see, Kimberly-Clark Corp. v Power Auth., 35 AD2d 330, 335). Further, no view of the evidence demonstrates any comparative negligence on the part of plaintiff.

In conclusion, we note that the trial court properly gave a missing witness charge concerning the owner and/or manager of the gas station since he was present at, or immediately after, the accident, and was clearly knowledgeable about several material issues in this case (see, People v Gonzalez, 68 NY2d 424, 427). Concur — Milonas, J. P., Ellerin, Ross, Asch and Kassal, JJ.

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Bluebook (online)

188 A.D.2d 279, Counsel Stack Legal Research, https://law.counselstack.com/opinion/livreri-v-oconnell-nyappdiv-1992.

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