| Marino v Cunningham |
| 2007 NY Slip Op 08043 [44 AD3d 912] |
| October 23, 2007 |
| Appellate Division, Second Department |
| Christine Marino et al., Appellants, v Diane G.Cunningham et al., Respondents. |
—[*1] Susan B. Owens, White Plains, N.Y. (Joseph M. Zecca of counsel), for respondents Diane G.Cunningham and Dorothy A. Crisci, as administrators of the estate of Dorothy Rodi.
In an action, inter alia, to recover damages for personal injuries, etc., the plaintiffs appealfrom a judgment of the Supreme Court, Westchester County (Dillon, J.), dated June 10, 2005,which, upon a jury verdict finding that the plaintiff Christine Marino did not sustain a seriousinjury within the meaning of Insurance Law § 5102 (d) and upon an order of the samecourt entered March 7, 2005, denying the plaintiffs' motion pursuant to CPLR 4404 (a) to setaside the verdict as against the weight of the evidence, is in favor of the defendants and againstthe plaintiffs dismissing the complaint.
Ordered that the judgment is affirmed, with costs.
This action arises from a three-car collision which occurred on December 7, 2002. Duringthe damages phase of the trial of this action, the plaintiffs attempted to establish that the carpaltunnel syndrome condition from which the plaintiff Christine Marino suffered was proximatelycaused by the subject motor vehicle accident and accordingly that the underlying accidentresulted in a serious injury within the meaning of Insurance Law § 5102 (d).
After the jury rendered a verdict, finding that Marino had not sustained a serious [*2]injury, the plaintiffs moved pursuant to CPLR 4404 (a) to set asidethe verdict as contrary to the weight of the evidence. The court properly denied the plaintiffs'motion.
The standard for determining whether a jury verdict is against the weight of the evidence iswhether the evidence so preponderated in favor of the movant that the verdict could not havebeen reached on any fair interpretation of the evidence (see Lolik v Big V Supermarkets,86 NY2d 744, 746 [1995]; Tapia vDattco, Inc., 32 AD3d 842, 845 [2006]). "Where the verdict can be reconciled with areasonable view of the evidence, the successful party is entitled to the presumption that the juryadopted that view" (Tapia v Dattco, Inc., 32 AD3d at 845). Here, a fair interpretation ofthe evidence supports the jury's conclusion that, based on the evidence before it, Marino's carpaltunnel syndrome was not proximately caused by the subject motor vehicle accident.
The plaintiffs' remaining contentions are unpreserved for appellate review and, in any event,do not warrant reversal (see Conradi v New York City Tr. Auth., 249 AD2d 436, 437[1998]). Schmidt, J.P., Fisher, Lifson and Carni, JJ., concur.