| Vittiglio v Gaurino |
| 2012 NY Slip Op 08114 [100 AD3d 987] |
| November 28, 2012 |
| Appellate Division, Second Department |
| Rose Vittiglio, Appellant-Respondent, v Rocco Gaurino etal., Appellants, and Gina DeMarco, Respondent. |
—[*1] Morris Duffy Alonso & Faley, New York, N.Y. (Anna J. Ervolina and Andrea M. Alonso ofcounsel), for appellants. Montfort, Healy, McGuire & Salley, Garden City, N.Y. (Donald S. Neumann, Jr., and JeffreyD. Present of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by herbrief, from so much of an order of the Supreme Court, Queens County (Strauss, J.), datedOctober 11, 2011, as denied her motion pursuant to CPLR 4404 (a) to set aside a jury verdict onthe issue of liability finding the defendants Rocco Gaurino and Daniel Gaurino 100% at fault andthe defendant Gina DeMarco 0% at fault and for judgment as a matter of law against alldefendants, or, in the alternative, to set aside the jury verdict as contrary to the weight of theevidence and for a new trial on the issue of liability, and the defendants Rocco Gaurino andDaniel Gaurino separately appeal from so much of the same order as denied their separate motionpursuant to CPLR 4404 (a) to set aside the jury verdict on the issue of liability and for judgmentas a matter of law, or, in the alternative, to set aside the jury verdict as contrary to the weight ofthe evidence and for a new trial on the issue of liability.
Ordered that the order is affirmed, with one bill of costs payable to the defendant GinaDeMarco by the plaintiff and the defendants Rocco Gaurino and Daniel Gaurino, appealingseparately and filing separate briefs.
A motion pursuant to CPLR 4404 (a) to set aside a jury verdict and for judgment as a matterof law will be granted where there is no valid line of reasoning and permissible inferences whichcould possibly lead rational persons to the conclusions reached by the jury on the basis of theevidence presented at trial (see Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]; Linson v City of New York, 98 AD3d1002 [2012]). Additionally, a jury verdict should not be set aside as contrary to the weight ofthe evidence unless the jury could not have reached the verdict by any fair interpretation of theevidence (see Lolik v Big V Supermarkets, 86 NY2d 744, 745-746 [1995]; Nicastro vPark, 113 AD2d 129, 130 [1985]).
Applying these principles here, there was a valid line of reasoning and permissible inferencesby which the jury could have rationally concluded that the defendant Gina DeMarco was [*2]not negligent in the operation of her vehicle, and that the defendantsRocco Gaurino and Daniel Gaurino were 100% at fault for the subject accident (see Rahman v Smith, 40 AD3d613 [2007]; see generally Cohen v Hallmark Cards, 45 NY2d 493 [1978]).Moreover, upon our review of the record, we find that the verdict was based upon a fairinterpretation of the evidence presented to the jury and, thus, was not contrary to the weight ofthe evidence (see Lolik v Big V Supermarkets, 86 NY2d 744 [1995]; Sydnor v Home Depot U.S.A., Inc., 74AD3d 1185, 1187-1188 [2010]).
The parties' remaining contentions are either without merit or not properly before this Court.Mastro, J.P., Skelos, Florio and Dickerson, JJ., concur.