McGruder v. Gray

265 A.D.2d 822, 696 N.Y.S.2d 335

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 1, 1999
• Docket: Appeal No. 1
• Status: Published

Opinion

—Judgment unanimously affirmed without costs. Memorandum: In this negligence action, arising from a motor vehicle accident, Supreme Court properly refused to admit in evidence photographs of the intersection where the accident occurred. Plaintiff failed to demonstrate that the photographs fairly and accurately depict the scene of the accident or that the photographs were taken under the same lighting conditions (see, People v Mixon, 203 AD2d 909, 910, lv denied 84 NY2d 830, 909; see also, Clancy v Port of N. Y. Auth., 55 AD2d 587, 588). The changed conditions depicted in the photographs affected important issues in the litigation (cf., Saporito v City of New York, 14 NY2d 474, 477). Further, the court properly denied plaintiff’s motion to set aside the verdict as against the weight of the evidence. “A motion to set aside a verdict should not be granted ‘unless the preponderance of the evidence in favor of the moving party is so great that the verdict could not have been reached upon any fair interpretation of the evidence’ ” (Kash v Kroeger, 222 AD2d 1101, 1102, quoting Dannick v County of Onondaga, 191 AD2d 963, 964). The parties presented conflicting testimony on the issue whether the accident occurred in plaintiff’s or defendant’s lane of traffic, and we perceive no basis in the record to disturb the jury’s resolution of that issue, which turned on the credibility of the parties (see, Holmes v Weissman, 251 AD2d 1078, 1079-1080). (Appeal from Judgment of Supreme Court, Onondaga County, Tormey, III, J. — Negligence.) Present — Green, J. P., Lawton, Pigott, Jr., Scudder and Balio, JJ.