Opinion
22764/02.
Decided September 22, 2005.
Plaintiff moves, pursuant to CPLR § 4404, for an order setting aside a jury verdict as against the weight of the evidence and directing a new trial on liability. Defendant opposes the motion.
Plaintiffs brought an action for personal injuries caused by the alleged negligence of the defendants. On March 6, 2002, plaintiffs were passengers on a B42 bus, owned and operated by defendant New York City Transit Authority (hereinafter NYCTA). At approximately 8:15 a.m., as the bus was entering the Rockaway Park train station, the driver made an unexpected stop, causing plaintiffs to fall.
During the jury trial, plaintiffs called as their witnesses, three NYCTA employees, bus operator Oceola Mack, bus dispatcher Arthur Kessler, safety investigator Albert Santoro, and the four plaintiffs. The defendant called Mr. Gallo, the Facilities Superintendent, as its sole witness. Following several days of testimony, the six person jury returned a unanimous verdict in favor of the defendant NYCTA and against the plaintiffs on the issue of liability.
At trial, plaintiffs described the unexpected stop as sudden and violent. The driver testified that the electronic gate at the Rockaway Park station unexpectedly came down, which caused him to apply the brakes. Plaintiffs contend that the inconsistencies of the driver's testimony were such that he should be deemed incredible as a matter of law. They further contend that the only evidence of how the accident occurred was through the testimony of the plaintiffs who testified that the sudden stop was a forceful jolt. It is undisputed, however, that the description of the occurrence came only from interested witnesses.
CPLR § 4404 states:
After a trial of a cause of action or issue triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside a verdict of any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence, in the interest of justice or where the jury cannot agree after being kept together for as long as is deemed reasonable by the court.
Although a trial court possesses broad discretion to grant a new trial where the verdict is against the weight of the evidence, the court is not free to interfere with the verdict simply because it views is as unsatisfactory, is in disagreement with it, or simply wishes to substitute its own determination for that of the jury ( Bobek v. Crystal, 291 AD2d 521 [2nd Dept. 2002]). The standard to be applied on a challenge to a jury verdict in favor of a defendant is whether the evidence so preponderates in the plaintiff's favor that the verdict could not have been reached upon any fair interpretation of the evidence ( Roseingrave v. Massapequa General Hospital, 298 AD2d 377 [2nd Dept 2002]). A motion to set aside a verdict is correctly denied if the jury could have reached its determination on a fair interpretation of the evidence presented, with consideration given to the credibility of the witnesses and the drawing of reasonable inferences therefrom ( Wertzberger v. City of New York, 254 AD2d 352 [2nd Dept. 1998]). Issues of credibility are within the purview of the jury and the jury is free to determine what witnesses they believed, what portion of the testimony they accepted, and the weight they wished to give to that testimony. To find otherwise would be an impermissible interference with the jury's resolution of credibility issues ( Krueger v. Wilde, 204 AD2d 988 [4th Dept. 1994]; see also Nicastro v. Park, supra., 113 AD2d 129, 133 [2nd Dept. 1985]).
The disputed testimony of the parties presents issues of credibility which were for the jury to resolve ( see Gerdik v. VanEss, 5 AD3d 726 [2nd Dept 2004]). Particular deference has also been accorded to jury verdicts in favor of defendants in tort cases because the clash of factual contentions is often sharper and simpler in those matters and the jury need not find that a defendant has prevailed by a preponderance of the evidence but rather may simply conclude that the plaintiff has failed to meet the burden of proof requisite of establishing the defendant's culpability ( Nicastro v. Park supra, 113 AD2d at 129).
To establish a prima facie case of negligence against a common carrier for injuries sustained by a passenger when the vehicle comes to a halt, the plaintiff must establish that the stop caused a jerk or lurch that was unusual and violent ( see Trudell v. New York R.T. Corp., 281 NY 82). Proof that the stop was unusual or violent must consist of a more than a mere characterization of the stop in those terms by the plaintiff ( Urquhart v. New York City Transit Authority, 85 NY2d 828).
After a review of the record, the court finds that the jury's determination in favor of the defendant was a fair interpretation of the evidence presented. The court did not at the time of trial, and does not now, find the driver's testimony incredible as a matter of law. In addition, it is perfectly reasonable for the jury to have fully credited the plaintiffs' version of the occurrence and yet still find that the stop did not rise to the level of a sudden, unusual, and violent jerk.
The jury could also have rationally concluded that the defendants were not negligent for the maintenance of the door because no evidence was presented with respect to that theory.
Based on these possible rational determinations, the court will not, in its discretion, set aside the verdict as against the weight of the evidence. Plaintiffs motion is, therefore, denied.
The foregoing constitutes the decision and order of the court.