| Scalogna v Osipov |
| 2014 NY Slip Op 03676 [117 AD3d 934] |
| May 21, 2014 |
| Appellate Division, Second Department |
[*1]
| Vito Scalogna, Respondent, v Kurshum Osipovet al., Appellants. |
Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn, N.Y. (Stacy R. Seldinof counsel), for appellants.
In an action to recover damages for personal injuries, the defendants appeal from anorder of the Supreme Court, Kings County (Steinhardt, J.), entered September 21, 2012,which granted the plaintiff's motion, in effect, pursuant to CPLR 4404 (a) to set aside ajury verdict in favor of them on the issue of liability as contrary to the weight of theevidence and for a new trial.
Ordered that the order is reversed, on the law and the facts, with costs, the plaintiff'smotion is denied, the jury verdict is reinstated, and the matter is remitted to the SupremeCourt, Kings County, for the entry of an appropriate judgment.
This appeal arises out of a two-car accident that occurred on December 7, 2010,between a vehicle operated by the defendant Kurshum Osipov and owned by thedefendant Horton Transport II, Inc., and another vehicle operated by the plaintiff, at theintersection of Oceanview Avenue and Brighton 13th Street, in Brooklyn. The partiesagree that the accident occurred between 7:00 p.m. and 8:00 p.m. and that it was dark atthe time.
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]; Crooks v E. Peters, LLC, 103AD3d 828, 829 [2013]; Verizon N.Y., Inc. v Orange & Rockland Utils., Inc., 100AD3d 983 [2012]; Buckenberger v Clark Constr. Corp., 208 AD2d 790, 791[1994]; Nicastro v Park, 113 AD2d 129, 134 [1985]). Whether a jury verdictshould 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 (see Cohen vHallmark Cards, 45 NY2d 493, 499 [1978]; Sokolik v Pateman, 114 AD3d 839 [2014]). "When averdict can be reconciled with a reasonable view of the evidence, the successful party isentitled to the presumption that the jury adopted that view" (Handwerker v Dominick L. Cervi,Inc., 57 AD3d 615, 616 [2008]; see Cinao v Reers, 109 AD3d 781, 782 [2013]; Johnson v Yue Yu Chen, 104AD3d 915, 915 [2013]; Liounis v New York City Tr. Auth., 92 AD3d 643, 644[2012]). It is for the jury to make determinations as to the credibility of the witnesses,and great deference in this regard is accorded to the jury, which had the opportunity tosee and hear the witnesses (see Crooks v E. Peters, LLC, 103 AD3d at 829; Lopreiato v Scotti, 101 AD3d829 [2012]; Buckenberger v Clark Constr. Corp., 208 AD2d at 791; Exarhouleas v Green 317 Madison,LLC, 46 AD3d 854, 855 [2007]). A jury may believe or disbelieve the testimonyof a witness, or believe portions [*2]of the testimony anddisbelieve others (see Wasserman v Wong, 181 AD2d 672, 674 [1992]). Indeed,the jury is free to accept or reject some or all of the parties' testimony and weigh anyconflicting inferences (see Penav Automatic Data Processing, Inc., 105 AD3d 924, 925 [2013]; Johnny's Plumbing & Heating,Inc. v Garson Bros. Constr., LLC, 63 AD3d 689 [2009]).
Here, the plaintiff and Osipov gave conflicting factual accounts of the manner inwhich the subject accident occurred. Contrary to the plaintiff's contention, the jury wasfree to credit Osipov's version of events over that of the plaintiff's version. According toOsipov, prior to entering the intersection of Oceanview Avenue and Brighton 13thStreet, he stopped at the stop sign on Brighton 13th Street and looked to his left foroncoming traffic on Oceanview Avenue, which was a one-way street. He noted that,when looking left down Oceanview Avenue, he could only see one block to Brighton14th Street because Oceanview Avenue, in that direction, curved out of view beyondBrighton 14th Street. After stopping for approximately three seconds and verifying thatthere was no oncoming traffic from his left, he moved slowly into the intersection. Whenhe was more than halfway through the intersection, he heard a loud noise to his left, likethe sound of a roaring engine, and when he looked to his left he noticed a vehicle comingtoward him on Oceanview Avenue, with its lights off, traveling at a very high rate ofspeed. He testified that he was unable to avoid the impact, which occurred when the frontof the plaintiff's vehicle collided with the front quarter panel of the driver's side of hisvehicle and caused his vehicle to be pushed through the intersection and into a parkedcar. He recalled that the plaintiff's vehicle, after striking his vehicle, went through theintersection, onto the sidewalk, and struck a building. Based on Osipov's version of theevents, the jury could have concluded that Osipov was not negligent in the happening ofthe accident. Since the verdict can be reconciled with a reasonable view of the evidence,the defendants were entitled to the presumption that the jury adopted that view.
Therefore, the Supreme Court erred in granting the plaintiff's motion to set aside thejury verdict on the ground that it was contrary to the weight of the evidence. Balkin, J.P.,Dickerson, Chambers and Hall, JJ., concur.