Smith v. Tadsen

Appellate Division of the Supreme Court of New York

Smith v. Tadsen

265 A.D.2d 863, 696 N.Y.S.2d 320, 1999 N.Y. App. Div. LEXIS 9954

Appellate Division of the Supreme Court of the State of New York·Decided October 1, 1999·Published·Cited by 1 cases

Opinion

—Order unanimously reversed on the law without costs, motion denied and verdict reinstated. Memorandum: Supreme Court erred in granting plaintiffs motion to set aside a jury verdict of no cause of action as against the weight of the evidence. “The standard for determining whether a jury’s verdict is against the weight of the evidence is whether 6 “ ‘the evidence so preponderate [d] in favor of the [plaintiff] that [the verdict] could not have been reached on any fair interpretation of the evidence’ ” ’ ” (Wesolek v Tops Mkts., 255 AD2d 972, 973, quoting Lolik v Big V Supermarkets, 86 NY2d 744, 746). In this case, a fair interpretation of the evidence supports the jury’s finding that defendant was not negligent. The jury could reasonably have credited the testimony of defendant and defendant’s expert engineer that plaintiffs daughter did not cross the street at the intersection and that she ran in front of defendant’s vehicle. (Appeal from Order of Supreme Court, Monroe County, Bergin, J. — Set Aside Verdict.) Present — Law-ton, J. P., Hayes, Wisner, Pigott, Jr., and Balio, JJ.

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—Order unanimously reversed on the law without costs, motion denied and verdict reinstated. Memorandum: Supreme Court erred in granting plaintiffs motion to set aside a jury verdict of no cause of action as against the weight of the evidence. “The standard for determining whether a jury’s verdict is against the weight of the evidence is whether 6 “ ‘the evidence so preponderate [d] in favor of the [plaintiff] that [the verdict] could not have been reached on any fair interpretation of the evidence’ ” ’ ” (Wesolek v Tops Mkts., 255 AD2d 972, 973, quoting Lolik v Big V Supermarkets, 86 NY2d 744, 746). In this case, a fair interpretation of the evidence supports the jury’s finding that defendant was not negligent. The jury could reasonably have credited the testimony of defendant and defendant’s expert engineer that plaintiffs daughter did not cross the street at the intersection and that she ran in front of defendant’s vehicle. (Appeal from Order of Supreme Court, Monroe County, Bergin, J. — Set Aside Verdict.) Present — Law-ton, J. P., Hayes, Wisner, Pigott, Jr., and Balio, JJ.

Smith v. Tadsen, 265 A.D.2d 863, 696 N.Y.S.2d 320, 1999 N.Y. App. Div. LEXIS 9954 (N.Y. Ct. App. 1999).

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