| Parr v Mongarella |
| 2010 NY Slip Op 06987 [77 AD3d 1429] |
| October 1, 2010 |
| Appellate Division, Fourth Department |
| Ruben Parr et al., Respondents, v Andrew J. Mongarella,Appellant. |
—[*1] Conway & Kirby, LLP, Latham (Andrew W. Kirby of counsel), forplaintiffs-respondents.
Appeal from an order of the Supreme Court, Cayuga County (Mark H. Fandrich, A.J.), enteredJuly 9, 2009 in a personal injury action. The order granted plaintiffs' motion to set aside the jury verdictand granted a new trial.
It is hereby ordered that the order so appealed from is unanimously reversed on the law withoutcosts, the motion is denied and the verdict is reinstated.
Memorandum: Plaintiffs commenced this action seeking damages for injuries they sustained whenthe vehicle operated by Ruben Parr (plaintiff) and in which plaintiff Denise Parr was a passenger wasstruck by a vehicle operated by defendant. Following a trial, the jury returned a verdict finding thatdefendant was not negligent. Supreme Court erred in granting plaintiffs' motion to set aside the verdictand in ordering a new trial. "A motion to set aside a jury verdict as against the weight of the evidence. . . should not be granted 'unless the preponderance of the evidence in favor of themoving party is so great that the verdict could not have been reached upon any fair interpretation of theevidence' . . . That determination is addressed to the sound discretion of the. . . court, but if the verdict is one that reasonable persons could have rendered afterreceiving conflicting evidence, the court should not substitute its judgment for that of the jury"(Ruddock v Happell, 307 AD2d 719, 720 [2003]; see McLoughlin v Hamburg Cent.School Dist., 227 AD2d 951 [1996], lv denied 88 NY2d 813 [1996]; Greene vFrontier Cent. School Dist., 214 AD2d 947, 948 [1995]). "Where varying inferences from theevidence are possible, the issue of negligence is left to the jury" (Harris v Armstrong, 97 AD2d947 [1983], affd 64 NY2d 700 [1984]).
Here, the court erred in substituting its judgment for that of the jury and thereby usurped the jury'sduty (see Pecora v Lawrence, 41 AD3d1212, 1213 [2007]; Ruddock, 307 AD2d at 720-721; Durante v Frishling, 81AD2d 631 [1981], appeals dismissed 54 NY2d 833 [1981]). The jury credited the testimonyof defendant and found that he was not following plaintiffs' vehicle too closely and thus that he was notnegligent. The jury further found that the actions of defendant in driving on the shoulder of [*2]the road and losing control of his vehicle did not constitute negligence.According to defendant, when plaintiffs' vehicle slowed down while traveling in front of him in the samelane, he switched to the passing lane in order to pass the vehicle. When defendant was approximatelyeven with the bumper of plaintiffs' vehicle, plaintiff drove into the passing lane, forcing defendant todrive onto the shoulder of the road. Defendant testified at trial that he believed that he could safelyavoid a collision with plaintiffs' vehicle by driving onto the shoulder, but he lost control of his vehicle,and it spun around and struck plaintiffs' vehicle. After hearing the conflicting evidence concerningwhether plaintiff entered defendant's lane of travel, a reasonable jury could accept defendant's versionof the accident as true and find that defendant was not negligent in losing control of his vehicle becauseplaintiff's actions forced him to take the course of action that led him to do so. "[T]he divergentaccounts [of the accident] raised a question of credibility to be resolved by the jury" (Ahr v Karolewski, 48 AD3d 719, 719[2008]). The jury's finding that defendant was not negligent is one that could reasonably have beenrendered upon the conflicting evidence presented by the parties at trial (see McLoughlin, 227AD2d 951 [1996]), and it was not " 'palpably irrational or wrong' " (American Linen Supply Co. v M.W.S.Enters., 6 AD3d 1079, 1080 [2004], lv dismissed 3 NY3d 702 [2004]).Present—Centra, J.P., Peradotto, Carni, Lindley and Sconiers, JJ.