| Lopreiato v Scotti |
| 2012 NY Slip Op 08495 [101 AD3d 829] |
| December 12, 2012 |
| Appellate Division, Second Department |
| Onofrio Lopreiato et al., Plaintiffs, and Nicola Lopreiato et al.,Appellants, v Gavin Scotti et al., Respondents. |
—[*1] Alan B. Brill, P.C., Suffern, N.Y. (Sheila S. Rosenrauch of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the plaintiffs Nicola Lopreiato andVana Lopreiato appeal from an order of the Supreme Court, Westchester County (Liebowitz, J.),entered April 27, 2011, which, upon a jury verdict on the issue of damages finding that theplaintiff Nicola Lopreiato did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d), denied their motion pursuant to CPLR 4404, inter alia, to set aside the verdictas against the weight of the evidence and for a new trial on the issue of damages.
Ordered that the order is affirmed, with costs.
"[A] jury verdict in favor of a defendant should not be set aside as contrary to the weight ofthe evidence unless the evidence preponderates so heavily in the plaintiff's favor that the verdictcould not have been reached on any fair interpretation of the evidence" (Daniels v Simon, 99 AD3d 658,659 [2012]; see Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]). "Whether a juryverdict should be set aside as contrary to the weight of the evidence does not involve a questionof law, but rather requires a discretionary balancing of many factors" (Jean-Louis v City of New York, 86AD3d 628, 628-629 [2011]; see Cohen v Hallmark Cards, 45 NY2d 493, 499[1978]; Nicastro v Park, 113 AD2d 129, 133 [1985]). " 'It is for the jury to makedeterminations as to the credibility of the witnesses, and great deference in this regard isaccorded to the jury, which had the opportunity to see and hear the witnesses' " (Jean-Louis vCity of New York, 86 AD3d at 629, quoting Exarhouleas v Green 317 Madison, LLC, 46 AD3d 854, 855[2007]). Here, contrary to the contention of the plaintiffs Nicola Lopreiato and Vana Lopreiato(hereinafter together the appellants), the jury's determination that Nicola Lopreiato did notsustain an injury under the 90/180 day category of Insurance Law § 5102 (d) and, thus, thathe did not sustain a serious injury within the meaning of that section, was not against the weightof the evidence.
The appellants' remaining contentions either are without merit or not properly before thisCourt. Angiolillo, J.P., Dickerson, Hall and Austin, JJ., concur.