| Volino v Long Is. R.R. Co. |
| 2011 NY Slip Op 02867 [83 AD3d 693] |
| April 5, 2011 |
| Appellate Division, Second Department |
| Richard Volino, Appellant, v Long Island Rail RoadCompany, Respondent. |
—[*1] Lewis Johs Avallone Aviles, LLP, Riverhead, N.Y. (Brian J. Greenwood of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from a judgment ofthe Supreme Court, Queens County (Weiss, J.), entered March 2, 2010, which, upon a juryverdict in favor of the defendant, and upon the denial of his motion pursuant to CPLR 4404 to setaside the verdict as contrary to the weight of the evidence, is in favor of the defendant and againsthim.
Ordered that the judgment is affirmed, with costs.
The plaintiff's contentions that the jury verdict was not based on legally sufficient evidenceand that he was entitled to a directed verdict in his favor are unpreserved for appellate review, asthe plaintiff did not raise that issue or request that relief in the trial court (see Miller vMiller, 68 NY2d 871, 873 [1986]; McConnell v Santana, 77 AD3d 635, 637 [2010]).
Contrary to the plaintiff's contention, the verdict was not contrary to the weight of theevidence. A jury verdict should not be set aside as contrary to the weight of the evidence unlessthe jury could not have reached the verdict upon any fair interpretation of the evidence (seeCohen v Hallmark Cards, 45 NY2d 493, 497-498 [1978]; Nicastro v Park, 113 AD2d129, 134 [1985]). It is the jury's province to make determinations as to the credibility ofwitnesses, and great deference is accorded to the jury's determinations in this regard given itsopportunity to see and hear the witnesses (see Emeagwali v Brooklyn Hosp. Ctr., 60 AD3d 891, 892 [2009];Exarhouleas v Green 317 Madison,LLC, 46 AD3d 854, 855 [2007]; Bertelle v New York City Tr. Auth., 19 AD3d 343, 343-344[2005]). Based on the evidence adduced at trial, the verdict in favor of the defendant should notbe disturbed.
The plaintiff's present challenge to certain testimony of a train engineer elicited during thedefendant's cross-examination of that witness on the grounds that it was speculative and lacked afactual foundation is not preserved for appellate review, as the plaintiff did not object to thetestimony on those grounds at trial (seePalmer v CSX Transp., Inc., 68 AD3d 1626, 1627-1628 [2009]; Gunnarson v Stateof New York, 95 AD2d 797, 798 [1983]). Additionally, to the extent that the plaintiffchallenges the jury verdict as being inconsistent, the contention also is unpreserved for appellatereview since he did not advance that issue in the trial court prior to the discharge of the jury (see Rivera v MTA Long Is. Bus, 45AD3d 557, 557-558 [2007]; Miller v Long Is. R.R., 286 AD2d 713, 714 [2001]).Mastro, J.P., Dillon, Balkin and Miller, JJ., concur.