| Ashby v Mullin |
| 2008 NY Slip Op 09011 [56 AD3d 588] |
| November 18, 2008 |
| Appellate Division, Second Department |
| Kevin Ashby, Appellant, v Michael J. Mullin,Respondent. |
—[*1] Grogan & Souto, P.C., Goshen, N.Y. (Edward P. Souto of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an amendedjudgment of the Supreme Court, Orange County (Owen, J.), entered June 8, 2007, which, upon ajury verdict, is in favor of the defendant and against him, dismissing the complaint.
Ordered that the amended judgment is affirmed, with costs.
This action arises out of a two-car collision that occurred on November 21, 2003. A motorvehicle operated by the plaintiff was struck in the rear by a motor vehicle operated by thedefendant. Evidence at trial established that the plaintiff had a herniated disc as early as 2001 andthat it still existed one month before the accident. The plaintiff's medical expert testified that theaccident aggravated the condition, but the defense presented expert testimony that the herniateddisc had not worsened as a result of the accident. Additionally, the plaintiff was impeached withinconsistent statements about whether he had suffered or sought treatment for neck pain beforethe accident. The jury found that the defendant was at fault for the accident, but that the plaintiffhad not sustained a serious injury as a result thereof (see Insurance Law § 5102[d]). The plaintiff appeals, asserting, inter alia, that the verdict was against the weight of theevidence. We affirm.
The standard for determining whether a jury verdict is against the weight of the evidence iswhether the evidence so preponderated in favor of the unsuccessful party that the verdict couldnot have been reached on any fair interpretation of the evidence (see Lolik v Big VSupermarkets, 86 NY2d 744, 746 [1995]; Pearson v Walker, 44 AD3d 1019 [2007];Tapia v Dattco, Inc., 32 AD3d 842, 844 [2006]). If the [*2]verdict can be reconciled with a reasonable view of the evidence,the successful party is entitled to the presumption that the jury adopted that view (see Pearsonv Walker, 44 AD3d at 1019; Tapia v Dattco, Inc. 32 AD3d at 844). Here, there is afair interpretation of the evidence presented at trial that supports the jury's conclusion that theaccident did not cause the plaintiff to sustain a serious injury within the meaning of InsuranceLaw § 5102 (d) (see Marino v Cunningham, 44 AD3d 912, 913 [2007]; cf.Scudera v Mahbubur, 39 AD3d 620, 620-621 [2007]).
The plaintiff's remaining contentions are without merit. Prudenti, P.J., Mastro, Fisher andDillon, JJ., concur.