Pizzolo v. Bove

Appellate Division of the Supreme Court of New York

Pizzolo v. Bove

123 A.D.2d 425, 506 N.Y.S.2d 729, 1986 N.Y. App. Div. LEXIS 60183

Appellate Division of the Supreme Court of the State of New York·Decided September 29, 1986·Published

Opinion

In an automobile negligence action to recover damages for personal injuries and injury to property, the defendants appeal from an order of the Supreme Court, Kings County (Vaccaro, J.), dated May 20, 1985, which, after a jury trial, granted the plaintiffs’ motion to set aside the verdict as contrary to the weight of the evidence and granted a new trial.

Order affirmed, with costs.

The court did not abuse its discretion in setting aside the jury verdict in this automobile accident case, which apportioned liability for the happening of the accident equally between the plaintiff Joseph Pizzolo and the defendants. Under the circumstances of the trial, the attorney separately representing the plaintiff Joseph Pizzolo on the counterclaim asserted against him by the defendants should have been permitted to participate in the trial (see, Chemprene, Inc. v XTyal Intl. Corp., 55 NY2d 900), and a new trial is warranted in the interest of justice (see, CPLR 4404 [a]). Further, we [426]*426agree with the court that the verdict was against the weight of the credible evidence (see, Cohen v Hallmark Cards, 45 NY2d 493, 499; Nicastro v Park, 113 AD2d 129, 133, 136-137). Mollen, P. J., Lazer, Lawrence and Kooper, JJ., concur.

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In an automobile negligence action to recover damages for personal injuries and injury to property, the defendants appeal from an order of the Supreme Court, Kings County (Vaccaro, J.), dated May 20, 1985, which, after a jury trial, granted the plaintiffs’ motion to set aside the verdict as contrary to the weight of the evidence and granted a new trial.

Order affirmed, with costs.

The court did not abuse its discretion in setting aside the jury verdict in this automobile accident case, which apportioned liability for the happening of the accident equally between the plaintiff Joseph Pizzolo and the defendants. Under the circumstances of the trial, the attorney separately representing the plaintiff Joseph Pizzolo on the counterclaim asserted against him by the defendants should have been permitted to participate in the trial (see, Chemprene, Inc. v XTyal Intl. Corp., 55 NY2d 900), and a new trial is warranted in the interest of justice (see, CPLR 4404 [a]). Further, we [426]*426agree with the court that the verdict was against the weight of the credible evidence (see, Cohen v Hallmark Cards, 45 NY2d 493, 499; Nicastro v Park, 113 AD2d 129, 133, 136-137). Mollen, P. J., Lazer, Lawrence and Kooper, JJ., concur.

Pizzolo v. Bove, 123 A.D.2d 425, 506 N.Y.S.2d 729, 1986 N.Y. App. Div. LEXIS 60183 (N.Y. Ct. App. 1986).

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Opinion

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