Opinion
CA 02-02028
February 7, 2003.
Appeal from a judgment (denominated order and judgment) of Supreme Court, Erie County (Cosgrove, J.), entered December 21, 2001, awarding plaintiffs $250,000 plus interest, costs and disbursements, upon a verdict.
HAGELIN BISCHOF, LLC, BUFFALO (DENNIS J. BISCHOF OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
FREID AND KLAWON, WILLIAMSVILLE (WAYNE I. FREID OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
PRESENT: PINE, J.P., WISNER, KEHOE, BURNS, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied and a new trial is granted on liability and damages.
Memorandum:
Plaintiff Regina Guenther allegedly sustained personal injuries when the vehicle that she was operating was struck by a vehicle operated by defendant Andrea Moreau and owned by defendant Kenvin Moreau. At the close of proof, Supreme Court granted plaintiffs' motion for a directed verdict on negligence, and thereafter only the issues of serious injury and damages were submitted to the jury. We agree with defendants that the court erred in granting the motion. Viewing the evidence in the light most favorable to the nonmoving party, we conclude that "[certain] facts are in dispute, * * * different inferences could be drawn from [the] undisputed facts, [and] the resolution of [certain] issue[s] depends upon the credibility of witnesses," all of which preclude the granting of the motion (Petrovski v. Fornes, 125 A.D.2d 972, 973, lv denied 69 N.Y.2d 608; see also Reynolds v. Morford, 124 A.D.2d 978). We therefore reverse the judgment, deny plaintiffs' motion and grant a new trial on liability and damages.