Exarhouleas v Green 317 Madison, LLC

2007 NY Slip Op 10515 [46 AD3d 854]

December 26, 2007

Appellate Division, Second Department

As corrected through Wednesday, February 13, 2008

Peter Exarhouleas et al., Appellants-Respondents, v Green317 Madison, LLC, Respondent, and TGI Friday's, Inc., et al.,Respondents-Appellants.

—[*1]Constantinidis & Associates, P.C., Long Island City, N.Y. (Patrick J. Hackett andO'Connor, O'Connor, Hintz & Deveney, LLP [Michael T. Reagan] of counsel), for appellants.

Thomas D. Hughes, New York, N.Y. (Richard C. Rubinstein and David D. Hess of counsel),for respondents-appellants.

Perez, Furey & Varvaro, Uniondale, N.Y. (Denise A. Cariello of counsel), forrespondent.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from so much of ajudgment of the Supreme Court, Queens County (Cullen, J.), dated July 20, 2006, as, upon a juryverdict in favor of the defendants TGI Friday's, Inc., and National 42nd St. Realty, Inc., on theissue of liability, and upon the denial of their motion pursuant to CPLR 4404 (a) to set aside thejury verdict, is in favor of those defendants and against them dismissing the complaint insofar asasserted against those defendants, and the defendants TGI Friday's, Inc., and National 42nd St.Realty, Inc., separately appeal from so much of the same judgment as is in favor of the defendantGreen 317 Madison, LLC, and against them dismissing their cross claims.

Ordered that the judgment is affirmed, without costs or disbursements.

A jury verdict should not be set aside as against the weight of the evidence unless the jurycould not have reached the verdict by any fair interpretation of the evidence (see Lolik v BigV [*2]Supermarkets, 86 NY2d 744, 746 [1995]; Harris v Marlow, 18 AD3d 608,610 [2005]; Torres v Esaian, 5AD3d 670, 671 [2004]). Whether a jury verdict should be set aside as contrary to the weightof the evidence does not involve a question of law, but rather requires a discretionary balancingof many factors (see Cohen v Hallmark Cards, 45 NY2d 493, 498 [1978]). It is for thejury to make determinations as to the credibility of the witnesses, and great deference in thisregard is accorded to the jury, which had the opportunity to see and hear the witnesses (see Bertelle v New York City Tr. Auth.,19 AD3d 343 [2005]; Corcoran v People's Ambulette Serv., 237 AD2d 402, 403[1997]).

Here, the jury's determination that the defendants TGI Friday's, Inc., and National 42nd St.Realty, Inc., were not negligent was not against the weight of the evidence.

The plaintiffs' remaining contention is without merit.

In light of the foregoing, the Supreme Court properly dismissed, as academic, the cross claimasserted by the defendants TGI Friday's, Inc., and National 42nd St. Realty, Inc., against thedefendant Green 317 Madison, LLC. Crane, J.P., Rivera, Florio and Balkin, JJ., concur.