| Tout v Zsiros |
| 2008 NY Slip Op 02392 [49 AD3d 1296] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| Jill M. Tout et al., Appellants, v Michael J. Zsiros et al.,Respondents. |
—[*1] Kenney Shelton Liptak Nowak LLP, Buffalo (Nelson E. Schule, Jr., of counsel), fordefendant-respondent Michael J. Zsiros. Goldberg Segalla LLP, Buffalo (John P. Freedenberg of counsel), for defendant-respondentCentral Originating Lease Trust.
Appeal from a judgment of the Supreme Court, Erie County (Diane Y. Devlin, J.), enteredApril 25, 2007 in a personal injury action. The judgment dismissed the amended complaint upona jury verdict.
It is hereby ordered that the judgment so appealed from is unanimously affirmed withoutcosts.
Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained byJill M. Tout (plaintiff) when the vehicle she was driving struck a vehicle driven by defendantMichael J. Zsiros and owned by defendant Central Originating Lease Trust. Supreme Courtproperly denied plaintiffs' motion pursuant to CPLR 4404 (a) seeking to set aside the jury verdictin favor of defendants as against the weight of the evidence. "A verdict rendered in favor of adefendant may be successfully challenged as against the weight of the evidence only when theevidence so preponderated in favor of the plaintiff that it could not have been reached on any fairinterpretation of the evidence" (Jaquay v Avery, 244 AD2d 730, 730-731 [1997]; seeLolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]; Garrison v Geyer, 19 AD3d 1136 [2005]). Plaintiffs concede that,based on the conflicting medical evidence concerning plaintiff's neck and back injuries, the jury'sverdict finding that plaintiff's injuries were not caused by the accident was based on a fairinterpretation of the evidence (seeCummings v Jiayan Gu, 42 AD3d 920, 922-923 [2007]; Wilson v Hallen Constr. Corp., 40AD3d 986, 987-988 [2007]; Fallonv Esposito, 35 AD3d 1067, 1068-1069 [2006]). They contend, however, that a new trialis required because that part of the verdict may have been based upon an erroneous "low impact"theory premised upon photographs depicting little or no damage to the parties' vehicles, whichwere admitted in evidence over plaintiffs' objection. We reject that contention, inasmuch as thecourt did not charge that alternative theory of [*2]causation(cf. Fein v Board of Educ. of City of N.Y., 305 NY 611, 612 [1953]; Purnell v NewYork City Hous. Auth., 262 AD2d 545 [1999]).
Finally, we reject plaintiffs' contention that the court erred in admitting the photographsof the parties' vehicles in evidence. Photographs showing no damage to a plaintiff's vehicle areadmissible to impeach a plaintiff's credibility on the issue whether the accident caused thealleged injuries (see Torres vEsaian, 5 AD3d 670, 671 [2004]; see also Anderson v Dainack, 39 AD3d 1065, 1066 [2007]).Present—Scudder, P.J., Centra, Lunn, Fahey and Green, JJ.