Opinion
September 3, 1985
Appeal from the Supreme Court, Nassau County (Kutner, J.).
Judgment affirmed, with costs payable by the plaintiff to defendant Mary M. Anderson.
The arguments by counsel for defendant Mary M. Anderson during summation were not so inflammatory as to entitle plaintiff to a new trial, in view of the trial court's prompt curative instructions to the jury.
Although it is well settled that alluding to a party's ability to pay damages is improper and grounds for reversal (O'Connor v Incorporated Vil. of Port Jefferson, 104 A.D.2d 861; Nicholas v Island Indus. Park, 46 A.D.2d 804), in this case there was already evidence before the jury of the relative policy limits which clearly indicated plaintiff's potential liability as the excess insurance carrier. Counsel's argument, therefore, did not tell the jury anything that they did not already know from the evidence.
The essential issue before the jury was the credibility of plaintiff's employees and defendants White and Struzzieri, each of whom argued as to the other's motivation for lying.
The jury's verdict, based primarily on their assessment of the relative credibility of the witnesses, was a fair interpretation of the evidence presented and, accordingly, it should not be disturbed on this appeal (Taype v City of New York, 82 A.D.2d 648, lv denied 55 N.Y.2d 608).
In view of the foregoing, we do not reach the issue of the timeliness of plaintiff's disclaimer notice. Brown, J.P., Weinstein, Niehoff and Lawrence, JJ., concur.