| Bonny v Pierre |
| 2012 NY Slip Op 00319 [91 AD3d 694] |
| Jnury 17, 2012 |
| Appellate Division, Second Department |
| Maria Bonny, Appellant, v Jean Herick Pierre et al.,Appellants, and Lloyd O. Nwankwo, Respondent, et al., Defendant. |
—[*1] Maroney O'Connor, LLP, New York, N.Y. (Gerald G. Cowen of counsel), fordefendants-appellants. Cartafalsa, Slattery, Turpin & Lenoff, New York, N.Y. (Raymond F. Slattery of counsel), fordefendant-respondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by herbrief, from so much of a judgment of the Supreme Court, Kings County (Bayne, J.), enteredOctober 21, 2010, as, upon a jury verdict, and upon the denial of her motion pursuant to CPLR4404 (a) to set aside so much of the verdict as found that the defendant Lloyd O. Nwankwo wasnot negligent as contrary to the weight of the evidence, in effect, dismissed the complaint insofaras asserted against Nwankwo, and the defendants Jean Herick Pierre and Future Cab Corp.separately appeal, as limited by their brief, from so much of the same judgment as, in effect, uponthe jury verdict, and upon the denial of their motion pursuant to CPLR 4404 (a) to set aside somuch of the verdict as found that the defendant Lloyd O. Nwankwo was not negligent as againstthe weight of the evidence, in effect, dismissed their cross claim asserted against the defendantLloyd O. Nwankwo.
Ordered that the judgment is affirmed insofar as appealed from, with one bill of costspayable by the appellants appearing separately and filing separate briefs.
CPLR 4404 (a) states, inter alia, that a court may set aside a jury verdict and "order a newtrial . . . where the verdict is contrary to the weight of the evidence." "A jury verdictshould not be set aside as contrary to the weight of the evidence unless 'the evidence sopreponderate[s] in favor of the [moving party] that the jury could not have reached the verdict byany fair interpretation of the evidence' " (Seong Yim Kim v New York City Tr. Auth., 87 AD3d 531, 532[2011], quoting Acosta v City of NewYork, 84 AD3d 706, 708 [2011]). "It is within the province of the jury to determineissues of credibility, and great deference is accorded to the jury given its opportunity to see andhear the witnesses" (Palermo v OriginalCalifornia Taqueria, Inc., 72 AD3d 917, 918 [2010]).
Contrary to the contentions of the plaintiff and the defendants Jean Herick Pierre and FutureCab Corp., there was a fair interpretation of the evidence supporting the jury's determination[*2]that the defendant Lloyd O. Nwankwo was not negligent anddid not violate Vehicle and Traffic Law § 1214, in that he opened the door of his vehicleafter determining that it was reasonably safe to do so (see Vehicle and Traffic Law§ 1214; cf. Abbas v Salavel,73 AD3d 1100 [2010]; Montesinosv Cote, 46 AD3d 774 [2007]; Williams v Persaud, 19 AD3d 686 [2005]). Accordingly, theSupreme Court properly denied the respective motions of the plaintiff and the defendants JeanHerick Pierre and Future Cab Corp., pursuant to CPLR 4404 (a) to set aside so much of the juryverdict as found that Nwankwo was not negligent as against the weight of the evidence.Dickerson, J.P., Hall, Austin and Miller, JJ., concur.