| Rosenfeld v Baker |
| 2010 NY Slip Op 08087 [78 AD3d 810] |
| November 9, 2010 |
| Appellate Division, Second Department |
| Donna Rosenfeld, Appellant, v Wilbert Baker III et al.,Respondents. |
—[*1]
In an action to recover damages for personal injuries, the plaintiff appeals (1), as limited byher notice of appeal and brief, from so much of an order of the Supreme Court, Suffolk County(Jones, Jr., J.), dated September 8, 2008, as denied her motion in limine to preclude thedefendants from offering a certain expert witness at trial and denied that branch of her separatemotion in limine which was to preclude testimony at trial on the issue of Munchausen Syndrome,(2) an order of the same court (Jones, Jr., J.), dated January 12, 2009, which denied her motion,in effect, for leave to reargue, (3) a judgment of the same court (Whelan, J.), entered February 25,2009, which, upon a jury verdict, is in favor of the defendants Jessica D. Goldberg and LawrenceJ. Goldberg and against her dismissing the complaint, and (4) an order of the same court(Whelan, J.), dated April 17, 2009, which denied her motion pursuant to CPLR 4404 to set asidethe jury verdict and for judgment as a matter of law or, in the alternative, for a new trial on theissue of whether the plaintiff sustained a serious injury within the meaning of Insurance Law§ 5102 (d), on the ground that the verdict was contrary to the weight of the evidence.
Ordered that the appeals from the orders dated September 8, 2008, and January 12, 2009, aredismissed; and it is further,
Ordered that the judgment and the order dated April 17, 2009, are affirmed; and it is further,
Ordered that one bill of costs is awarded to the defendants Jessica D. Goldberg and LawrenceJ. Goldberg.[*2]
The appeal from the order dated September 8, 2008, mustbe dismissed because the portions of the order appealed from concern evidentiary rulings which,even when made in advance of trial on motion papers, are not appealable, either as of right or bypermission (see CPLR 5701; Barnes v Paulin, 52 AD3d 754 [2008]; Citlak v Nassau County Med. Ctr., 37AD3d 640 [2007]; Cotgreave v Public Adm'r of Imperial County [Cal.], 91 AD2d600, 601 [1982]). The issues raised on the appeal from the order dated September 8, 2008, arebrought up for review and have been considered on the appeal from the judgment (seeCPLR 5501 [a] [1]). The appeal from the order dated January 12, 2009, must be dismissed,as no appeal lies from an order denying reargument.
Contrary to the plaintiff's contention, the defendants' medical experts were properlypermitted to testify at trial, inter alia, based upon their review of the plaintiff's medical records(see Matter of Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund,90 NY2d 139 [1997]). The fact that the defendants' psychiatric expert did not examine theplaintiff goes only to the weight of his testimony, not to its admissibility (see Weigert vBaker, 217 AD2d 1011 [1995]).
Moreover, the Supreme Court properly denied that branch of the plaintiff's motion pursuantto CPLR 4404 which was to set aside the jury verdict and for judgment as a matter of law. Theproponent of a motion pursuant to CPLR 4404 to set aside a jury verdict as not supported bylegally sufficient evidence must demonstrate that there is no valid line of reasoning andpermissible inferences which would lead rational persons to the conclusions reached by the jury(see Cohen v Hallmark Cards, 45 NY2d 493 [1978]). Here, the Supreme Court properlyheld that the evidence adduced at trial was sufficient as a matter of law since a valid line ofreasoning could have led the jury to conclude that none of the injuries that were proximatelycaused by the subject accident constituted a serious injury as that term is defined in InsuranceLaw § 5102 (d).
The Supreme Court also properly denied that branch of the plaintiff's motion pursuant toCPLR 4404 which was for a new trial on the issue of whether the plaintiff sustained a seriousinjury within the meaning of Insurance Law § 5102 (d), on the ground that the verdict wasagainst the weight of the evidence. A jury verdict should not be set aside as against the weight ofthe evidence unless the verdict could not have been reached on any fair interpretation of theevidence (see Lolik v Big V Supermarkets, 86 NY2d 744 [1995]). " 'Where, as here,conflicting expert testimony is presented, the jury is entitled to accept one expert's opinion, andreject that of another expert' " (Moralesv Interfaith Med. Ctr., 71 AD3d 648, 650 [2010], quoting Ross v Mandeville, 45 AD3d 755,757 [2007]). It is for the jury to make determinations as to the credibility of the witnesses, and itis accorded great deference, as it had the opportunity to see and hear the witnesses (see Davison v New York City Tr.Auth., 63 AD3d 871 [2009]). Here, a fair interpretation of the evidence supports thejury's conclusion that, based on the evidence before it, the plaintiff did not sustain a seriousinjury within the meaning of Insurance Law § 5102 (d) as a result of the subject motorvehicle accident (see Handwerker vDominick L. Cervi, Inc., 57 AD3d 615 [2008]; Marino v Cunningham, 44 AD3d 912 [2007]). Dillon, J.P.,Angiolillo, Hall and Roman, JJ., concur.