| Fekry v New York City Tr. Auth. |
| 2010 NY Slip Op 06227 [75 AD3d 616] |
| July 27, 2010 |
| Appellate Division, Second Department |
| Atta D. Fekry, Respondent, v New York City TransitAuthority et al., Defendants, and MTA Bus Company et al.,Appellants. |
—[*1] Sacco & Fillas, LLP, Whitestone, N.Y. (Luigi Brandimarte and Elias N. Fillas of counsel),for respondent.
In an action to recover damages for personal injuries, the defendants MTA Bus Companyand Ronald Pierre appeal, as limited by their brief, from so much of an order of the SupremeCourt, Queens County (Agate, J.), entered July 10, 2009, as denied that branch of their motionwhich was pursuant to CPLR 4404 (a) to set aside a jury verdict on the issue of liability findingthem 28% at fault, the defendant Maria Torres 65% at fault, and the plaintiff 7% at fault in thehappening of the accident and for a judgment as a matter of law, or to set aside the jury verdictas contrary to the weight of the evidence and for a new trial, or for a mistrial.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly denied those branches of the motion of the defendants MTABus Company and Ronald Pierre (hereinafter together the appellants) which were pursuant toCPLR 4404 (a) for judgment as a matter of law and to set aside the jury verdict on the issue ofliability as contrary to the weight of the evidence and for a new trial. Pursuant to CPLR 4404 (a),a trial court "may set aside a verdict . . . and direct that judgment be entered infavor of a party entitled to judgment as a matter of law." Here, however, a valid line of reasoningand permissible inferences could lead rational people to the conclusion reached by the jury onthe basis of the evidence presented at trial (see Cohen v Hallmark Cards, 45 NY2d 493[1978]; Lalanne v Nyack Hosp., 45AD3d 645, 646 [2007]). Further, a jury verdict should not be set aside as contrary to theweight of the evidence unless the jury could not have reached the verdict by any fairinterpretation of the evidence (see Lolik v Big V Supermarkets, 86 NY2d 744 [1995]; Ahr v Karolewski, 48 AD3d 719[2008]; Nicastro v Park, 113 AD2d 129 [1985]). Whether a jury verdict should be setaside as contrary to the weight of the evidence does not involve a question of law, but ratherrequires a discretionary balancing of many factors (see Cohen v Hallmark Cards, 45NY2d 493 [1978]; Nicastro v Park, 113 AD2d 129 [1985]). It is for the trier of fact tomake determinations as to the credibility of the witnesses, and great deference is accorded to thefactfinders, who had the opportunity to see and hear the witnesses (see Bertelle v New York City Tr.Auth., 19 AD3d 343 [2005]). Applying these principles, the Supreme Court properlydenied that branch of the appellants' motion which was pursuant to CPLR 4404 (a) to set asidethe verdict as contrary to the weight of the evidence and for a new trial. A fair interpretation ofthe evidence supported the jury's determination that Pierre's negligent operation of his vehiclecontributed to the happening of [*2]the incident (see Nicastrov Park, 113 AD2d 129 [1985]).
Contrary to the appellants' contention, the Supreme Court properly denied that branch oftheir motion which was for a mistrial based upon improper comments made by the plaintiff'scounsel during the summation. The Supreme Court sustained the appellants' objection to thesecomments, provided curative instructions, and openly admonished the plaintiff's counsel,correcting any possible prejudice (see Blanar v Dickinson, 296 AD2d 431 [2002];Bacigalupo v Healthshield, Inc., 231 AD2d 538 [1996]).
The Supreme Court did not improvidently exercise its discretion in denying the appellants'request to charge the jury on the emergency doctrine, as there is no reasonable view of theevidence supporting the occurrence of a qualifying emergency (see Caristo v Sanzone,96 NY2d 172, 174-175 [2001]; cf. Waugh v Johns, 206 AD2d 525 [1994]). Skelos, J.P.,Angiolillo, Dickerson and Leventhal, JJ., concur.