| Dennis v Massey |
| 2015 NY Slip Op 09737 [134 AD3d 1532] |
| December 31, 2015 |
| Appellate Division, Fourth Department |
[*1]
| Jerome S. Dennis, Appellant, v Clarke E. Massey et al.,Respondents. (Appeal No. 1.) |
Gelber & O'Connell, LLC, Amherst (Timothy G. O'Connell of counsel), forplaintiff-appellant.
David J. State, General counsel, Buffalo (Vicky-marie J. Brunette of counsel), fordefendants-respondents.
Appeal from a judgment of the Supreme Court, Erie County (Patrick H. NeMoyer,J.), entered March 25, 2014. The judgment was entered in favor of defendants as againstplaintiff and awarded defendants costs and disbursements.
It is hereby ordered that the judgment so appealed from is unanimously affirmedwithout costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries heallegedly sustained in a motor vehicle accident. He appeals from a judgment dismissingthe complaint upon a jury verdict finding that he did not sustain a serious injury withinthe meaning of Insurance Law § 5102 (d) as the result of the accident.
Contrary to plaintiff's contention, Supreme Court properly denied his motions for adirected verdict, for judgment notwithstanding the verdict, and to set aside the verdict asagainst the weight of the evidence. With respect to plaintiff's first two contentions,"[g]iven the conflicting testimony of plaintiff['s] experts and defendants' expert[ ] bothon the issues of serious injury and causation, we conclude that this is not an instance inwhich plaintiff [is] 'entitled to judgment as a matter of law' " (Pawlaczyk v Jones, 26 AD3d822, 823 [2006], lv denied 7 NY3d 701 [2006], quoting CPLR 4404 [a]; see Regdos v City of Buffalo,132 AD3d 1343, 1343 [2015]), because it cannot be said that there is "simply novalid line of reasoning and permissible inferences which could possibly lead rational[persons] to the conclusion reached by the jury on the basis of the evidence presented attrial" (Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). To the contrary,"there is a rational process by which the jury could have found that defendant[s']negligence was not a substantial factor in causing plaintiff's alleged injuries" (Bennice v Randall, 71 AD3d1454, 1455 [2010]).
The court also properly denied plaintiff's motion to set aside the verdict as against theweight of the evidence. Plaintiff failed to establish that the evidence so preponderated inhis favor that the verdict "could not have been reached on any fair interpretation of theevidence" (Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995] [internal quotation marks omitted]; see Schley v Steffans, 79AD3d 1753, 1754 [2010]; Cummings v Jiayan Gu, 42 AD3d 920, 922 [2007]).Although plaintiff presented evidence that he sustained a serious injury with respect tohis neck and lumbar spine, we note that "the conflicting medical expert testimony 'raisedissues of credibility for the jury to determine' " (Campo v Neary, 52 AD3d1194, 1198 [2008]; seegenerally Tallarico v Kolli, 122 AD3d 1409, 1410 [2014]; Barton v Youmans, 24 AD3d1192, 1192 [2005]). Furthermore, plaintiff presented only his [*2]testimony on the issue whether he sustained a serious injurywithin the meaning of the 90/180-day category (see Insurance Law§ 5102 [d]), and "plaintiff's credibility was also an issue for the jury" (Salisbury v Christian, 68 AD3d1664, 1665 [2009]). "[A] plaintiff may of course be impeached by his or her owntestimony" (id.) and, based on the factors negatively impacting plaintiff'scredibility, we conclude that the verdict was not contrary to the weight of theevidence.
Contrary to plaintiff's final contention, the court properly denied his motion to setaside the verdict and for a new trial in the interest of justice where, as here, "there is noevidence that substantial justice has not been done" (Danieu v 109 S. Union St., LLC, 56 AD3d 1292, 1293[2008], lv denied 12 NY3d 710 [2009] [internal quotation marks omitted]). In hismotion to set aside the verdict and on appeal, he contends that he was deprived of a fairtrial by statements made by defendants' attorney during summations, and by the court'sfailure to give a PJI 2:305 instruction to the jury. Even assuming, arguendo, that plaintiffpreserved for our review his contention with respect to the statements of defendants'attorney on summation, we conclude that the majority of the statements were proper, andany impropriety that may have occurred was not so prejudicial as to deprive plaintiff of afair trial (see Guthrie vOvermyer, 19 AD3d 1169, 1171 [2005]; cf. Huff v Rodriguez, 64 AD3d 1221, 1223-1224 [2009]).In addition, the court "properly rejected the plaintiff['s] request to charge the jury that thedefendants were liable for any subsequent aggravation of the injuries due to subsequentmedical treatment, or even subsequent medical malpractice (see PJI3d 2:305[2004 Supp]), since there was no factual basis for such a charge" (Tatlici v APA Truck LeasingCorp., 8 AD3d 656, 656-657 [2004]). Present—Scudder, P.J., Smith,Valentino and DeJoseph, JJ.