| Hinterberger v Leslie |
| 2007 NY Slip Op 08527 [45 AD3d 1314] |
| November 9, 2007 |
| Appellate Division, Fourth Department |
| Barbara Hinterberger, Respondent-Appellant, v Cathy L. Leslie,Appellant-Respondent. (Appeal No. 2.) |
—[*1] Campbell & Shelton LLP, Eden (R. Colin Campbell of counsel), forplaintiff-respondent-appellant.
Appeal and cross appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin,J.), entered July 20, 2006 in a personal injury action. The order, among other things, deniedplaintiff's motion to set aside the jury verdict in part, for judgment as a matter of law onnegligence and for a new trial and denied defendant's motion to vacate those parts of the priororder granting plaintiff's motion for a mistrial and ordering a new trial.
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslymodified on the law by granting defendant's motion, vacating the first ordering paragraph of theorder and of the amended order entered May 9, 2006 and July 20, 2006, respectively, anddirecting that judgment be entered in favor of defendant and against plaintiff on the jury verdictand as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries she allegedlysustained when the motor vehicle she was driving collided with a vehicle driven by defendant.Supreme Court properly denied plaintiff's motion to set aside the jury verdict in part, forjudgment as a matter of law on negligence and for a new trial on, inter alia, the issue whetherplaintiff sustained a serious injury. "Upon our review of the evidence, we cannot conclude thatthe proof presented so preponderated in favor of plaintiff that the verdict finding that she did notsustain a serious injury could not have been reached on any fair interpretation of the evidence"(Holbrook v Pruiksma, 43 AD3d603, 603 [2007]). That conclusion renders moot plaintiff's further contentions with respect tothe jury's findings on negligence and the apportionment of fault (see Cummings v Jiayan Gu, 42 AD3d920, 923 [2007]), and the court's failure to charge the emergency doctrine. We haveconsidered plaintiff's remaining contentions and conclude that none requires setting aside theverdict.
We further conclude that the court erred in denying that part of defendant's motion to vacatethose parts of the order granting plaintiff's postverdict motion for a mistrial and ordering a newtrial, and further erred in denying that part of defendant's motion for judgment on the jury [*2]verdict. We therefore modify the order accordingly. We rejectplaintiff's contention that defendant may not appeal from the order insofar as it denied that part ofthe motion to vacate that part of the order granting the postverdict motion for a mistrial (see generally Weinberg v Remyco,Inc., 9 AD3d 425, 426-427 [2004]; Matter of Taylor, 271 App Div 947 [1947])and ordered a new trial (see CPLR 5701 [a] [2] [iii]). On the merits, we conclude that thecourt abused its discretion in granting plaintiff's motion because the reference by defendant'sexpert witness on cross-examination to defendant's insurance carrier did not warrant a mistrial(see Kowalski v Loblaws, Inc., 61 AD2d 340, 343 [1978]). We further concludethat defendant is entitled to judgment on the jury verdict. Present—Gorski, J.P., Smith,Centra, Fahey and Green, JJ.