| Brongo v Town of Greece |
| 2012 NY Slip Op 06423 [98 AD3d 1260] |
| September 28, 2012 |
| Appellate Division, Fourth Department |
| William J. Brongo, as Administrator of the Estate of Louise M.Bacchetta, Deceased, Respondent, v Town of Greece, Appellant. |
—[*1] Brenna, Brenna & Boyce, PLLC, Rochester (William J. Brongo of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Monroe County (William P. Polito, J.), enteredDecember 4, 2006 in a personal injury action. The order granted decedent's motion to set asidethe jury verdict in favor of defendant and against decedent and granted a directed verdict in favorof decedent and against defendant on the issue of proximate cause.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs, the motion is denied and the jury verdict is reinstated.
Memorandum: Louis M. Bacchetta (decedent) commenced this action seeking damages forinjuries he sustained while riding his motorcycle. The administrator of his estate was substitutedas the plaintiff after this appeal was perfected. According to decedent, he hit the curb of a"bump-out" in the road and was thrown from his motorcycle. Defendant appeals from an orderthat granted decedent's motion to set aside the jury verdict in favor of defendant and directed averdict in favor of decedent on the issue of proximate cause. We reverse and reinstate the juryverdict. Preliminarily, we note that Supreme Court erred in directing a verdict in favor ofdecedent on the issue of proximate cause upon setting aside the verdict as against the weight ofthe evidence. The appropriate remedy where a verdict is against the weight of the evidence is anew trial, not a directed verdict (see Levin v Carbone, 277 AD2d 951, 951 [2000]).
On the merits, we cannot agree with the court that the jury verdict was against the weight ofthe evidence. The jury found that defendant was negligent, but that its negligence was not aproximate cause of the accident. Such a finding is inconsistent and against the weight of theevidence only when the issues are "so inextricably interwoven as to make it logically impossibleto find negligence without also finding proximate cause" (Rubin v Pecoraro, 141 AD2d525, 527 [1988]; see Cona v Dwyer, 292 AD2d 562, 563 [2002]). We conclude that theverdict with respect to the findings of negligence and proximate cause can be reconciled, i.e.,those findings are not inconsistent with a reasonable view of the evidence, and defendant isentitled to the presumption that the jury adopted that view (see Mascia v Olivia, 299AD2d 883, 883 [2002]). At trial, the evidence established that decedent had made numerouspretrial statements describing the accident, [*2]including astatement in which he admitted to a police officer at the scene of the accident that, prior tostriking the curb of the bump-out in the road, he had misjudged the curve or lost control of hismotorcycle while attempting to negotiate the curve. That statement varied from other pretrialstatements in which he asserted that he had never seen the bump-out in the road. Affording duedeference to the jury's role as factfinder, particularly with regard to questions of proximate cause,we conclude that the jury's findings should be left intact (see DaBiere v Craig, 284 AD2d885, 885 [2001]). Present—Scudder, P.J., Fahey, Lindley, Sconiers and Martoche, JJ.