Zolli v. Dubois

88 A.D.2d 951, 451 N.Y.S.2d 189, 1982 N.Y. App. Div. LEXIS 17318

Opinion

— In a negligence action to recover damages for personal injuries, defendant appeals from an order of the Supreme Court, Queens County (Dufficy, J.), dated May 11, 1981, which granted plaintiff’s motion to set aside the jury verdict in favor of defendant on the issue of liability, and ordered a new trial. Order reversed, with $50 costs and disbursements, plaintiff’s motion to set aside the verdict is denied, the verdict is reinstated and the case is remitted to Trial Term for entry of a judgment in favor of defendant. We hesitate to disturb a Trial Judge’s discretionary decision to set aside a jury verdict. (See Cohen v Hallmark Cards, 45 NY2d 493, 499; Mann v Hunt, 283 App Div 140.) Nonetheless, where as here, Trial Term’s decision has unnecessarily interfered with the fact-finding function of the jury, reversal is warranted. (See Durante v Frishling, 81 AD2d 631.) Under the facts of this case, the jury could reasonably have found that plaintiff’s own voluntary acts were the sole proximate cause of his injuries, thus supporting its verdict in favor of defendant. Damiani, J. P., Mangano, Gulotta and Niehoff, JJ., concur.