| Acosta v City of New York |
| 2010 NY Slip Op 02910 [72 AD3d 624] |
| April 6, 2010 |
| Appellate Division, Second Department |
| Pedro Acosta, Respondent, v City of New York et al.,Appellant. |
—[*1] Roura & Melamed (Alexander J. Wulwick, New York, N.Y., of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from (1) anorder of the Supreme Court, Kings County (Starkey, J.), dated December 18, 2008, which deniedtheir motion pursuant to CPLR 4404 (a) to set aside a jury verdict in favor of the plaintiff andagainst them and for judgment as a matter of law or, alternatively, to set aside the jury verdict asagainst the weight of the evidence and for a new trial, and granted their separate motion pursuantto CPLR 4404 (a) to set aside the verdict on the issue of damages only to the extent of ordering anew trial unless the plaintiff stipulated to reduce the damages award for future pain and sufferingto the principal sum of $325,000, and (2) a judgment of the same court dated February 5, 2009,which, upon the order and upon the plaintiff's stipulation, is in favor of the plaintiff and againstthem in the principal sum of $480,000.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is reversed, on the law, with costs, that branch of the defendants'motion pursuant to CPLR 4404 (a) which was to set aside the jury verdict and for judgment as amatter of law is granted, the defendants' separate motion pursuant to CPLR 4404 (a) to set asidethe verdict on the issue of damages is denied as academic, and the order is modified accordingly;and it is further,
Ordered that one bill of costs is awarded to the defendants.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
Pursuant to CPLR 4404 (a), the trial court "may set aside a verdict . . . anddirect that judgment be entered in favor of a party entitled to judgment as a matter of law." Acourt may set aside a jury verdict as unsupported by legally sufficient evidence only if there is "'simply no valid [*2]line of reasoning and permissible inferenceswhich could possibly lead rational [individuals] to the conclusion reached by the jury on thebasis of the evidence presented at trial' " (Soto v New York City Tr. Auth., 6 NY3d 487, 492 [2006], quotingCohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). In considering such a motion, "'the trial court must afford the party opposing the motion every inference which may properly bedrawn from the facts presented, and the facts must be considered in a light most favorable to thenonmovant' " (Hand v Field, 15AD3d 542, 543 [2005], quoting Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]).
Contrary to the plaintiff's contention, viewing the facts in the light most favorable to him,there was no valid line of reasoning and permissible inferences which could possibly have ledrational individuals to conclude, based upon the evidence presented, that the defendants wereliable. In sum, the plaintiff's version of the events was "manifestly untrue, physically impossible,or contrary to common experience, and such testimony should be disregarded as being withoutevidentiary value" (Cruz v New YorkCity Tr. Auth., 31 AD3d 688, 690 [2006], affd 8 NY3d 825 [2007]). We notethat the record is replete with instances where the testimony and other evidence adduced by theplaintiff was manifestly untrue and tailored to avoid the consequences of previous statementsmade by him to disinterested nonparty witnesses. Accordingly, the Supreme Court should havegranted that branch of the defendants' motion pursuant to CPLR 4404 (a) which was to set asidethe verdict and for judgment as a matter of law.
In light of our determination, the parties' remaining contentions are academic. Rivera, J.P.,Leventhal, Belen and Sgroi, JJ., concur. [Prior Case History: 21 Misc 3d 1147(A), 2008 NYSlip Op 52527(U).]