| Ahr v Karolewski |
| 2008 NY Slip Op 01687 [48 AD3d 719] |
| February 26, 2008 |
| Appellate Division, Second Department |
| Thomas Ahr, Appellant, v Joseph Karolewski et al.,Respondents. |
—[*1] Cascone & Kluepfel, LLP, Garden City, N.Y. (David F. Kluepfel of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from a judgment ofthe Supreme Court, Suffolk County (Molia, J.), entered July 12, 2007, which, upon a jury verdictin favor of the defendants, and upon the denial of his motion pursuant to CPLR 4404 (a) to setaside the verdict as against the weight of the evidence, is in favor of the defendants and againsthim, dismissing the complaint.
Ordered that the judgment is affirmed, with costs.
"[T]he discretionary power to set aside a jury verdict and order a new trial must be exercisedwith considerable caution, for in the absence of indications that substantial justice has not beendone, a successful litigant is entitled to the benefits of a favorable jury verdict" (Nicastro vPark, 113 AD2d 129, 133 [1985]). Moreover, "[a] jury verdict should not be set aside asagainst the weight of the evidence unless the jury could not have reached its verdict on any fairinterpretation of the evidence" (Yau vNew York City Tr. Auth., 10 AD3d 654, 655 [2004]; McDonagh v Victoria's Secret, Inc., 9AD3d 395, 396 [2004]; Kinney v Taylor, 305 AD2d 466 [2003]).
Here, the plaintiff and the defendant Joseph Karolewski gave two conflicting factualaccounts of the manner in which the subject motor vehicle accident occurred. Contrary to theplaintiff's contention, Karolewski's version of events was not so manifestly untrue, physicallyimpossible, or contrary to common experience as to render it incredible as a matter of law.Rather, the divergent [*2]accounts raised a question of credibilityto be resolved by the jury (see Prozeralik v Capital Cities Communications, 82 NY2d466, 473 [1993]; Magnavita v County of Nassau, 282 AD2d 658 [2001]; Wright vSaeed Deli & Grocery, 275 AD2d 999 [2000]). The jury's resolution of that issue is entitledto great deference given its opportunity to hear and observe the witnesses (see Wilson v Hallen Constr. Corp., 40AD3d 986, 988 [2007]; Shi PeiFang v Heng Sang Realty Corp., 38 AD3d 520, 521 [2007]; Bobek v Crystal,291 AD2d 521, 522 [2002]). Applying these principles to the facts in this case, it simplycannot be said that the evidence so preponderated in favor of the plaintiff that the jury could nothave reached its verdict in favor of the defendants on any fair interpretation of the trial evidence(see e.g. Landau v Rappaport, 306 AD2d 446 [2003]; Bobek v Crystal, 291 AD2d521 [2002]).
The plaintiff's remaining contention is improperly raised for the first time on appeal and, inany event, is without merit. Mastro, J.P., Florio, Miller and Dickerson, JJ., concur.