| Davison v New York City Tr. Auth. |
| 2009 NY Slip Op 05081 [63 AD3d 871] |
| June 16, 2009 |
| Appellate Division, Second Department |
| Clyde Davison, Appellant, v New York City TransitAuthority, Respondent. |
—[*1] Wallace D. Gossett, New York, N.Y. (Steve S. Efron of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from a judgmentof the Supreme Court, Kings County (Schack, J.), dated November 21, 2007, which, upon thegranting of the defendant's motion pursuant to CPLR 4404 to set aside, as contrary the weight ofthe evidence, a jury verdict on the issue of liability, finding the defendant 70% at fault and theplaintiff 30% at fault in the happening of an accident, and, in effect, for judgment in its favor as amatter of law, is in favor of the defendant and against him, dismissing the complaint.
Ordered that the judgment is reversed, on the law and the facts, with costs, the defendant'smotion to set aside the verdict is denied, the jury verdict on the issue of liability is reinstated, andthe matter is remitted to the Supreme Court, Kings County, for a trial on the issues of damages.
The Supreme Court improperly awarded the defendant judgment as a matter of law, andimproperly set aside the jury verdict as contrary to the weight of the evidence. A jury verdictshould not be set aside as contrary to the weight of the evidence unless the jury could not havereached the verdict by any fair interpretation of the evidence (see Lolik v Big VSupermarkets, 86 NY2d 744 [1995]; Nicastro v Park, 113 AD2d 129, 134 [1985]).Whether a jury verdict should be set aside as contrary to the weight of the evidence does notinvolve a question of law, but rather requires a discretionary balancing of many factors (seeCohen v Hallmark Cards, 45 NY2d 493 [1978]; Nicastro v Park, 113 AD2d 129[1985]). It is for the jury to make determinations as to the credibility of the witnesses, and it isaccorded great deference as it had the opportunity to see and hear the witnesses (see Bertellev New York City Tr. Auth., 19 AD3d 343 [2005]). Under the circumstances, the jury'sdetermination was supported by a fair interpretation of the evidence, and the Supreme Courtshould not have set aside the verdict (see generally Soto v New York City Tr. Auth., 6NY3d 487 [2006]; Derdiarian v Felix Contr. Corp., 51 NY2d 308 [1980]). Rivera, J.P.,Eng, Chambers and Hall, JJ., concur.