| Short v Daloia |
| 2010 NY Slip Op 01175 [70 AD3d 1384] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| Kristine E. Short, Appellant, v Gerald Daloia et al., Respondents.(Appeal No. 2.) |
—[*1] Bouvier Partnership, LLP, Buffalo (Norman E.S. Greene of counsel), fordefendants-respondents.
Appeal from a judgment of the Supreme Court, Monroe County (Evelyn Frazee, J.), enteredNovember 3, 2008 in a personal injury action. The judgment dismissed the complaint upon a juryverdict.
It is hereby ordered that the judgment so appealed from is unanimously affirmed withoutcosts.
Memorandum: Plaintiff commenced this action seeking damages for injuries she sustainedwhen the vehicle in which she was a passenger was allegedly struck by a vehicle owned bydefendant Gerald Daloia and operated by defendant Bette Daloia. Plaintiff appeals from ajudgment entered upon a jury verdict finding that Bette Daloia was not negligent. We reject thecontention of plaintiff that Supreme Court erred in denying her post-trial motion for "[j]udgmentnotwithstanding the verdict[ ] or in the alternative a new trial" pursuant to CPLR 4404. In lightof the paucity of direct evidence concerning the circumstances of the accident and thecontradictory nature of the circumstantial evidence presented, we conclude that "thepreponderance of the evidence in favor of plaintiff [was] not so great that the verdict could nothave been reached upon any fair interpretation of the evidence, nor is the verdict palpably wrongor irrational" (Kettles v City ofRochester, 21 AD3d 1424, 1425 [2005]; see generally Lolik v Big VSupermarkets, 86 NY2d 744, 746 [1995]). Plaintiff failed to preserve for our review herfurther contention that the court erred in failing to include in its readback of the definition ofnegligence to the jury that portion of the jury charge pertaining to a statutory violation (see generally Garris v K-Mart, Inc., 37AD3d 1065 [2007]). In any event, that contention is without merit inasmuch as the court'sreadback was appropriately responsive to the jury's request for the definition of negligence(see Kettles, 21 AD3d 1424, 1425-1426 [2005]; Gutierrez v City of New York,288 AD2d 86 [2001]).
Finally, plaintiff contends that she is entitled to a new trial based on the alleged misconductof defendants' attorney during summation. Plaintiff failed to object to the majority of thecomments at issue and thus she failed to preserve for our review her contention with respect tothose comments (see [*2]Dailey v Keith, 306 AD2d 815,816 [2003], affd 1 NY3d 586 [2004]; Wiepert v Manchester, 298 AD2d 947[2002]). With respect to the comments to which plaintiff objected, we conclude that they neither" 'divert[ed] the attention of the jurors from the issues at hand' " (Kmiotek v Chaba, 60 AD3d 1295,1296 [2009]), nor had any likely effect on the jury's verdict (see Wilson v City of New York, 65 AD3d 906, 908 [2009]).Present—Smith, J.P., Carni, Pine and Gorski, JJ.