| Rubino v Scherrer |
| 2009 NY Slip Op 09642 [68 AD3d 1090] |
| December 22, 2009 |
| Appellate Division, Second Department |
| Susan Rubino, Appellant, v George Scherrer,Respondent. |
—[*1] Saretsky Katz Dranoff & Glass, LLP, New York, N.Y. (Robert Yodowitz of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from a judgmentof the Supreme Court, Nassau County (Galasso, J.), entered April 28, 2008, which, upon thedenial of the plaintiff's motion pursuant to CPLR 4401 for a judgment as a matter of law, made atthe close of evidence, upon a jury verdict on the issue of liability, and upon the denial of theplaintiff's motion pursuant to CPLR 4404 (a) to set aside the verdict on the issue of liability ascontrary to the weight of the evidence and for a new trial or, in the alternative, as unsupported bylegally sufficient evidence and for judgment as a matter of law, is in favor of the defendant andagainst the plaintiff dismissing the complaint.
Ordered that the judgment is affirmed, with costs.
The plaintiff alleged that she was injured when she was struck by the defendant's vehicle asshe was jogging along a roadway in West Hampton Beach. After a trial on the issue of liability,the jury found that the defendant was negligent, but that his negligence was not a substantialfactor in the happening of the accident. Judgment was entered in favor of the defendantdismissing the complaint. We affirm.
Contrary to the plaintiff's contention, the Supreme Court did not err in refusing to direct averdict in favor of the plaintiff and award her judgment as a matter of law at the close ofevidence. In order to direct a verdict, the court must view the evidence in the light mostfavorable to the defendant and conclude that "there is no rational process by which the fact triercould base a finding in favor of the [defendant]" (Szczerbiak v Pilat, 90 NY2d 553, 556[1997]; see Pecora v Lawrence, 28 AD3d 1136, 1137 [2006]). Here, given thedefendant's testimony that the accident occurred because the plaintiff abruptly ran out in front ofhis car, there was clearly a rational process by which the jury could find for the defendant.Moreover, to the extent that this factual issue was to be resolved based upon a credibilitydetermination, it was properly left to the province of the jury.
Similarly, the court did not err in denying the plaintiff's motion pursuant to CPLR 4404 (a)to set aside the verdict on the issue of liability and for a new trial or, in the alternative, forjudgment as a matter of law. "A jury verdict should not be set aside as against the weight of theevidence unless the jury could not have reached the verdict by any fair interpretation of theevidence" (Jones v Radeker, 32 AD3d 494, 495 [2006]; see Cohen v Hallmark Cards,45 NY2d 493 [1978]; Yau v New York City Tr. Auth., 10 AD3d 654 [2004];McDonagh v Victoria's Secret, Inc., 9 AD3d 395 [2004]). "A jury's finding that a partywas at fault but that such fault was not a proximate cause of the [plaintiff's injuries] isinconsistent and against the weight of the [*2]evidence onlywhen the issues are so inextricably interwoven as to make it logically impossible to findnegligence without also finding proximate cause" (Garrett v Manaser, 8 AD3d 616, 617[2004] [emphasis added]; see Schaefer v Guddemi, 182 AD2d 808, 809 [1992]). Further,"[a] contention that a verdict is inconsistent and irreconcilable must be reviewed in the context ofthe court's charge, and where it can be reconciled with a reasonable view of the evidence, thesuccessful party is entitled to the presumption that the jury adopted that view" (Rivera vMTA Long Is. Bus, 45 AD3d 557, 558 [2007]).
Here, the jury verdict was neither contrary to the weight of the evidence nor inconsistent.Pursuant to the trial court's charge regarding the broad duties and general obligations of a driverand a pedestrian, including the applicable provisions of the Vehicle and Traffic Law, it wasreasonable for the jury to find that the defendant was negligent in the operation of his vehicle(see Vehicle and Traffic Law §§ 1120, 1146). However, it was alsoreasonable for the jury to conclude that such negligence was not a proximate cause of theaccident (see Price v Grant, 60 AD3d 746 [2009]; Burghardt v Cmaylo, 40AD3d 568 [2007]; Abre v Sherman, 36 AD3d 725 [2007]; Loder v Greco, 5AD3d 978 [2004]; Rubin v Pecoraro, 141 AD2d 525 [1988]). Given the testimony thatthe plaintiff "cut across" the front of the defendant's moving vehicle, the defendant is entitled tothe presumption that the jury adopted the view that the plaintiff's conduct was the sole proximatecause of the accident (see Vehicle and Traffic Law §§ 1152, 1156 [b];Rubin v Pecoraro, 141 AD2d at 527).
The verdict on the issue of liability was also supported by legally sufficient evidence since,on the basis of the evidence presented at trial, there was a valid line of reasoning by which thejury could conclude that the defendant was negligent but that his negligence was not theproximate cause of the plaintiff's injuries (see Cohen v Hallmark Cards, 45 NY2d 493,499 [1978]).
The plaintiff's remaining contentions are without merit. Skelos, J.P., Dickerson, Eng andSgroi, JJ., concur.