| See v Baltic Estates, Inc. |
| 2011 NY Slip Op 09112 [90 AD3d 737] |
| December 13, 2011 |
| Appellate Division, Second Department |
| Scott H. See, Jr., Appellant, v Baltic Estates, Inc.,Respondent. (And a Third-Party Action.) (And Another Title.) |
—[*1] Thomas D. Hughes, New York, N.Y. (Richard C. Rubinstein of counsel), forrespondent.
In an action to recover damages for personal injuries, which was consolidated with a relatedaction, the plaintiff appeals, as limited by his brief, from (1) so much of an order of the SupremeCourt, Dutchess County (Pagones, J.), dated July 22, 2008, as denied that branch of his motionwhich was pursuant to CPLR 4404 (a) to set aside so much of a jury verdict as was in favor ofthe defendant and against him on the issue of liability as contrary to the weight of the evidenceand for a new trial, and (2) so much of a judgment of the same court entered February 24, 2009,as, upon the order, is in favor of the defendant and against him dismissing the complaint.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the respondent.
The appeal from the order must be dismissed because the right of direct appeal therefromterminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241,248 [1976]). The issues raised on the appeal from the order are brought up for review on theappeal from the judgment (see CPLR 5501 [a] [1]).
A jury verdict should not be set aside as contrary to the weight of the evidence unless the jurycould not have reached the verdict by any fair interpretation of the evidence (see Lolik v BigV Supermarkets, 86 NY2d 744 [1995]; Nicastro v Park, 113 AD2d 129 [1985]).Whether a jury verdict should be set aside as contrary to the weight of the evidence does notinvolve a question of law, but rather requires a discretionary balancing of many factors (seeCohen v Hallmark Cards, 45 NY2d 493 [1978]; Nicastro v Park, 113 AD2d 129[1985]). Here, the jury was presented with conflicting factual accounts of the manner in whichthe subject accident occurred, and its determination was supported by a fair interpretation of theevidence (see Lolik v Big V Supermarkets, 86 NY2d 744 [1995]; Nicastro vPark, 113 AD2d 129 [1985]).[*2]
Accordingly, the Supreme Court properly denied thatbranch of the plaintiff's motion which was pursuant to CPLR 4404 (a) to set aside so much of theverdict as was in favor of the defendant and against him on the issue of liability as contrary to theweight of the evidence and for a new trial. Angiolillo, J.P., Dickerson, Lott and Miller, JJ.,concur.