| McMillian v Burden |
| 2016 NY Slip Op 00851 [136 AD3d 1342] |
| February 5, 2016 |
| Appellate Division, Fourth Department |
[*1]
| Maurice McMillian et al., Respondents, v Mimeux M.Burden, Respondent, and James E. Grant, Appellant, et al., Defendant. Mimeux M.Burden, Respondent, v James E. Grant, Appellant. |
Hagelin Kent LLC, Buffalo (Sean M. Spencer of counsel), fordefendant-appellant.
Paul J. Vacca, Jr., Rochester, for plaintiffs-respondents Maurice McMillian andTeartha McMillian.
Elliott Stern Calabrese, LLP, Rochester (David S. Stern of counsel), fordefendant-respondent and plaintiff-respondent Mimeux M. Burden.
Appeal from an order of the Supreme Court, Monroe County (Ann Marie Taddeo,J.), entered March 17, 2014. The order, among other things, granted the plaintiffs'motions to set aside the jury verdict.
It is hereby ordered that the order so appealed from is unanimously reversed on thelaw without costs, the motions are denied, and the jury verdict is reinstated.
Memorandum: Plaintiffs Maurice McMillian and Teartha McMillian commenced thisaction asserting direct and derivative causes of action based on injuries sustained byMaurice while he was a passenger in a vehicle being operated by Mimeux M. Burden, adefendant in the action commenced by Maurice and Teartha, and the plaintiff in aseparate action against James E. Grant (defendant), who was driving the vehicle thatrear-ended the vehicle operated by Mimeux. The two actions were joined for trial, andthe jury found that neither Maurice nor Mimeux had sustained a serious injury pursuantto Insurance Law § 5102 (d). Supreme Court granted plaintiffs' motions toset aside the verdict as against the weight of the evidence and determined as a matter oflaw that both Maurice and Mimeux had sustained a serious injury. We reverse andreinstate the verdict.
As a preliminary matter, we note our difficulty in reviewing this case inasmuch as thecourt failed to set forth its reasoning for setting aside the verdict and determining, as amatter of law, that both Maurice and Mimeux sustained a serious injury. The courtessentially disregarded the deference owed to a jury verdict (see generally McClain vLockport Mem. Hosp., 236 AD2d 864, 865 [1997], lv denied 89 NY2d 817[1997]), and made a determination of serious injury as a matter of law, and yet it failed tospecify what category or categories of serious injury Maurice and Mimeuxsustained.
It is well established that " '[a] verdict rendered in favor of a defendant maybe [*2]successfully challenged as against the weight ofthe evidence only when the evidence so preponderated in favor of the plaintiff that itcould not have been reached on any fair interpretation of the evidence' " (Sauter v Calabretta, 103 AD3d1220, 1220 [2013]). "Although [t]hat determination is addressed to the sounddiscretion of the trial court, . . . if the verdict is one that reasonable personscould have rendered after receiving conflicting evidence, the court should not substituteits judgment for that of the jury" (id. [internal quotation marks omitted]).Furthermore, "it is within the province of the jury to determine issues of credibility, andgreat deference is accorded to the jury given its opportunity to see and hear thewitnesses" (id. [internal quotation marks omitted]).
Here, we conclude that the court erred in setting aside the jury's verdict inasmuch asthe jury was entitled to credit the testimony of defendant's witnesses and reject thetestimony of plaintiffs' witnesses (see Guthrie v Overmyer, 19 AD3d 1169, 1170 [2005]).Even assuming, arguendo, that plaintiffs established a prima facie case of serious injury,we nevertheless conclude that the jury was entitled to reject the opinions of plaintiffs'physicians (see Sanchez vDawson, 120 AD3d 933, 935 [2014]). The jury's interpretation of the evidencewas not " 'palpably irrational' " (Quigley v Sikora, 269 AD2d812, 813 [2000]), or " 'palpably wrong' " (Mohamed v Cellino &Barnes, 300 AD2d 1116, 1117 [2002], lv denied 99 NY2d 510 [2003]), andthe court therefore erred in granting plaintiffs' motions. Present—Centra, J.P.,Peradotto, Carni, Lindley and DeJoseph, JJ.