Pomaro v. McKeon

228 A.D.2d 572, 644 N.Y.2d 638, 644 N.Y.S.2d 638, 1996 N.Y. App. Div. LEXIS 7097

Opinion

The Supreme Court improperly set aside the jury’s verdict on the issue of liability (see, CPLR 4404; Cohen v Hallmark Cards, 45 NY2d 493). Here, the jury "was presented with sharp issues of credibility and the accuracy of the witnesses’ testimony was for its determination” (Albero v Rogers, 143 AD2d 246; see also, Salazar v Fisher, 147 AD2d 470). The jury’s apportionment of liability in this case was based upon a fair interpretation of the evidence. Thus, it should not have been disturbed (see, Nicastro v Park, 113 AD2d 129; see also, Patti v Fenimore, 181 AD2d 869).

However, the court correctly set aside the jury’s verdict with respect to damages since the award was against the weight of the evidence (see, Cohen v Hallmark Cards, supra), and "deviate[d] materially from what would be reasonable compensation” (CPLR 5501 [c]). Pizzuto, J. P., Joy, Krausman and Mc-Ginity JJ., concur.