| Herbst v Marshall |
| 2011 NY Slip Op 07965 [89 AD3d 1403] |
| November 10, 2011 |
| Appellate Division, Fourth Department |
| Mary Herbst et al., Respondents-Appellants, v Mark Marshall,Appellant-Respondent, et al., Defendant. |
—[*1] Paul William Beltz, P.C., Buffalo (Kevin J. Graff of counsel), forplaintiffs-respondents-appellants.
Appeal and cross appeal from an order of the Supreme Court, Niagara County (Ralph A.Boniello, III, J.), entered May 18, 2010 in a personal injury action. The order granted the motion ofplaintiffs to set aside the jury verdict and for a new trial.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries allegedly sustained byMary Herbst (plaintiff) when her vehicle was rear-ended by a vehicle that in turn had been rear-endedby a vehicle driven by Mark Marshall (defendant). Following a jury trial, Supreme Court grantedplaintiffs' post-trial motion seeking, in the alternative, to set aside the verdict as against the weight of theevidence and for a new trial based on the jury's finding that the accident was not a substantial factor incausing an injury to plaintiff. We affirm. "A motion to set aside a jury verdict as against the weight of theevidence . . . should not be granted 'unless the preponderance of the evidence in favor ofthe moving party is so great that the verdict could not have been reached upon any fair interpretation ofthe evidence' . . . That determination is addressed to the sound discretion of the trial court,but if the verdict is one that reasonable persons could have rendered after receiving conflictingevidence, the court should not substitute its judgment for that of the jury" (Ruddock v Happell,307 AD2d 719, 720 [2003]; see Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]).
Here, the first question on the verdict sheet was whether the accident was "a substantial factor incausing an injury to" plaintiff. The question was not whether plaintiff sustained a "serious" injury(see Insurance Law § 5102 [d]); questioning concerning whether plaintiff sustained aserious injury appeared later in the verdict sheet. While there was conflicting evidence presented at trialwhether plaintiff sustained a "serious" injury, it was undisputed that she sustained "an" injury to hercervical spine (see generally Browne v Pikula, 256 AD2d 1139 [1998]). Indeed, defendant'sexperts both opined that plaintiff sustained a cervical strain as a result of the accident. We thereforeconclude that the evidence that the accident was a substantial factor in [*2]causing an injury to plaintiff so preponderates in favor of plaintiffs that thejury finding to the contrary could not have been reached on any fair interpretation of the evidence.
We agree with defendant, however, that the court erred to the extent it relied on a statementallegedly made by the jury foreperson in support of its decision to set aside the verdict. "[A]bsentexceptional circumstances, juror affidavits may not be used to attack a jury verdict" (Grant vEndy, 167 AD2d 807, 808 [1990]; seePhelinger v Krawczyk, 37 AD3d 1153, 1153-1154 [2007]). Here, there was in fact noaffidavit submitted by the jury foreperson, and the statement in question upon which the court relied inpart as the basis for its decision was brought to the court's attention by only hearsay statements ofplaintiffs' attorney and investigator. Moreover, there was no exception to the general rule that jurorsmay not impeach their own verdict, i.e., there was no ministerial error in reporting the verdict orevidence of substantial juror confusion (seePorter v Milhorat, 26 AD3d 424 [2006]; see also Grant, 167 AD2d at 807-808).Nevertheless, for the reasons stated above concerning whether plaintiff sustained an injury, weconclude that the court properly set aside the verdict as against the weight of the evidence.
We have considered the contentions of plaintiffs raised on their cross appeal and conclude that theyare without merit. Present—Scudder, P.J., Smith, Centra, Green and Gorski, JJ.