| DiMarco v Custom C.A.S., Inc. |
| 2013 NY Slip Op 03055 [106 AD3d 684] |
| May 1, 2013 |
| Appellate Division, Second Department |
| Dominick A. DiMarco, Appellant, v CustomC.A.S., Inc., et al., Respondents. |
—[*1] Shapiro, Beilly & Aronowitz, LLP, New York, N.Y. (Roy Karlin of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from ajudgment of the Supreme Court, Queens County (Siegal, J.), entered November 9, 2011,which, upon a jury verdict in favor of the defendants, and upon an order of the samecourt dated August 24, 2011, denying his motion pursuant to CPLR 4404 to set aside thejury verdict as contrary to the weight of the evidence or in the interest of justice and for anew trial, is in favor of the defendants and against him, dismissing the complaint.
Ordered that on the Court's own motion, the notice of appeal from the order isdeemed a premature notice of appeal from the judgment (see CPLR 5520 [c]);and it is further,
Ordered that the judgment is affirmed, with costs.
A jury verdict should not be set aside as contrary to the weight of the evidence unlessthe jury could not have reached the verdict by any fair interpretation of the evidence(see Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]; Nicastro vPark, 113 AD2d 129, 134 [1985]). Whether a jury verdict should be set aside ascontrary to the weight of the evidence does not involve a question of law, but ratherrequires a discretionary balancing of many factors (see Cohen v Hallmark Cards,45 NY2d 493, 498-499 [1978]; Nicastro v Park, 113 AD2d at 134-135). "It is forthe jury to make determinations as to the credibility of the witnesses, and great deferencein this regard is accorded to the jury, which had the opportunity to see and hear thewitnesses" (Exarhouleas vGreen 317 Madison, LLC, 46 AD3d 854, 855 [2007]; see Babajanov v Yun SangMa, 77 AD3d 862 [2010]; Salony v Mastellone, 72 AD3d 1060 [2010]). Here, wherethe jury was presented with conflicting evidence as to how and why the accidentoccurred, its determination to resolve questions of credibility against the plaintiff wassupported by a fair interpretation of the evidence (see Lolik v Big VSupermarkets, 86 NY2d 744 [1995]; Nicastro v Park, 113 AD2d 129[1985]).
The plaintiff's remaining contention is without merit. Skelos, J.P., Balkin, Cohen andMiller, JJ., concur.