Opinion
2013-03-20
Anatoli TSIMBALENKO, et al., appellants, v. Miguel A. IRIZARRY, et al., respondents.
Queller, Fisher, Washor, Fuchs & Kool, LLP, New York, N.Y. (Matthew J. Maiorana of counsel), for appellants. Sobel & Schleier, LLC, Huntington, N.Y. (Curtis Sobel and Michael C. Lamendola of counsel), for respondents.
Queller, Fisher, Washor, Fuchs & Kool, LLP, New York, N.Y. (Matthew J. Maiorana of counsel), for appellants. Sobel & Schleier, LLC, Huntington, N.Y. (Curtis Sobel and Michael C. Lamendola of counsel), for respondents.
REINALDO E. RIVERA, J.P., DANIEL D. ANGIOLILLO, CHERYL E. CHAMBERS, and SHERI S. ROMAN, JJ.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Queens County (Pineda–Kirwan, J.), dated August 17, 2011, which, upon a jury verdict in favor of the defendants and against them on the issue of liability, and upon the denial of their motion, in effect, pursuant to CPLR 4404(a) to set aside the verdict and for judgment as a matter of law or, in the alternative, to set aside the verdict as contrary to the weight of the evidence and for a new trial on the issue of liability, is in favor of the defendants and against them, dismissing the complaint.
ORDERED that the judgment is affirmed, with costs.
For a reviewing court to determine that a jury's verdict is not supported by legally sufficient evidence, it must conclude that there is “simply no valid line of reasoning and permissible inferences” by which the jury could have rationally reached its verdict “on the basis of the evidence presented at trial” ( Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145;see Szczerbiak v. Pilat, 90 N.Y.2d 553, 556, 664 N.Y.S.2d 252, 686 N.E.2d 1346). In addition, a jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence ( see Grassi v. Ulrich, 87 N.Y.2d 954, 956, 641 N.Y.S.2d 588, 664 N.E.2d 499;Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163;Bailey v. Brookdale Univ. Hosp. & Med. Ctr., 98 A.D.3d 545, 949 N.Y.S.2d 714;Jean–Louis v. City of New York, 86 A.D.3d 628, 628, 928 N.Y.S.2d 310;Nicastro v. Park, 113 A.D.2d 129, 133–134, 495 N.Y.S.2d 184). Whether a jury verdict should be set aside as contrary to the weight of the evidence does not involve a question of law, but rather requires a discretionary balancing of many factors ( see Cohen v. Hallmark Cards, 45 N.Y.2d at 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145;Nicastro v. Park, 113 A.D.2d at 133, 495 N.Y.S.2d 184). “ It is within the province of the jury to determine issues of credibility, and great deference is accorded to the jury given its opportunity to see and hear the witnesses” ( Palermo v. Original California Taqueria, Inc., 72 A.D.3d 917, 918, 898 N.Y.S.2d 502;see Adetimirin v. Howland Hook Hous. Co., Inc., 92 A.D.3d 814, 815, 939 N.Y.S.2d 498).
Applying these principles here, there was a valid line of reasoning and permissible inferences by which the jury could have rationally reached its verdict on the basis of the evidence presented at trial, and a fair interpretation of the evidence supported the jury's determination that the defendants were not negligent.
A statute or principle of law should be charged only where there is evidence in the record to support a finding that the statute or rule was violated ( see Green v. Downs, 27 N.Y.2d 205, 208–209, 316 N.Y.S.2d 221, 265 N.E.2d 68;Hardy v. Sicuranza, 133 A.D.2d 138, 139, 518 N.Y.S.2d 812;Gamar v. Gamar, 114 A.D.2d 487, 489, 494 N.Y.S.2d 402;Wilmot v. City of New York, 73 A.D.2d 201, 204, 426 N.Y.S.2d 8). Contrary to the plaintiffs' contention, the trial court properly charged the jury with Vehicle and Traffic Law § 1123(b), as the evidence supported a finding that the plaintiff Anatoli Tsimbalenko was attempting to improperly pass the defendants' truck on the right at the time of the subject accident.