Opinion
2013-04-3
Albert FELICIA, appellant, v. BORO CRESCENT CORP., et al., respondents.
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant. Lewis Brisbois Bisgaard & Smith, LLP, New York, N.Y. (Nicholas P. Hurzler of counsel), for respondents.
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant. Lewis Brisbois Bisgaard & Smith, LLP, New York, N.Y. (Nicholas P. Hurzler of counsel), for respondents.
DANIEL D. ANGIOLILLO, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and PLUMMER E. LOTT, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Bunyan, J.), entered July 29, 2011, which, upon a jury verdict in favor of the defendants and against him on the issue of liability, is in favor of the defendants and against him dismissing the complaint.
ORDERED that the judgment is affirmed, with costs.
The plaintiff's contention that he was entitled to judgment as a matter of law on the issue of liability is unpreserved for appellatereview, since he failed to request that relief in the Supreme Court ( see Miller v. Miller, 68 N.Y.2d 871, 873, 508 N.Y.S.2d 418, 501 N.E.2d 26;Volino v. Long Is. R.R. Co., 83 A.D.3d 693, 919 N.Y.S.2d 914;Salony v. Mastellone, 72 A.D.3d 1060, 901 N.Y.S.2d 87;Gonyon v. MB Tel., 36 A.D.3d 592, 828 N.Y.S.2d 452;Ford v. Southside Hosp., 12 A.D.3d 561, 785 N.Y.S.2d 474).
Contrary to the plaintiff's contention, the verdict was not contrary to the weight of the evidence. “A jury verdict in favor of a defendant should not be set aside as contrary to the weight of the evidence unless the evidence preponderates so heavily in the plaintiff's favor that the verdict could not have been reached on any fair interpretation of the evidence” ( Lopreiato v. Scotti, 101 A.D.3d 829, 829, 954 N.Y.S.2d 895;see Das v. Costco Wholesale Corp., 98 A.D.3d 712, 950 N.Y.S.2d 396;Coma v. City of New York, 97 A.D.3d 715, 949 N.Y.S.2d 98;Bonny v. Pierre, 91 A.D.3d 694, 936 N.Y.S.2d 895;Semel v. Guzman, 84 A.D.3d 1054, 924 N.Y.S.2d 414). The jury's determinations as to the credibility of the witnesses, and its resolution of conflicting expert testimony, are entitled to deference on appeal, as the jury had the opportunity to see and hear the witnesses ( see Lopreiato v. Scotti, 101 A.D.3d at 830, 954 N.Y.S.2d 895;Verizon N.Y., Inc. v. Orange & Rockland Utils., Inc., 100 A.D.3d 983, 954 N.Y.S.2d 641;Vaccarino v. Mad Den, Inc., 100 A.D.3d 867, 955 N.Y.S.2d 122;Francis v. Leon D. Dematteis Assoc., LLC, 99 A.D.3d 856, 951 N.Y.S.2d 906;Jean–Louis v. City of New York, 86 A.D.3d 628, 928 N.Y.S.2d 310;Ferreira v. Wyckoff Hgts. Med. Ctr., 81 A.D.3d 587, 915 N.Y.S.2d 631). Based on the evidence adduced at trial, the verdict in favor of the defendants should not be disturbed.
It is within the Supreme Court's sound discretion to determine whether a particular witness is qualified to testify as an expert ( see de Hernandez v. Lutheran Med. Ctr., 46 A.D.3d 517, 850 N.Y.S.2d 460;Steinbuch v. Stern, 2 A.D.3d 709, 770 N.Y.S.2d 106;Pignataro v. Galarzia, 303 A.D.2d 667, 757 N.Y.S.2d 76;McLamb v. Metropolitan Suburban Bus Auth., 139 A.D.2d 572, 527 N.Y.S.2d 73). “The competence of an expert in a particular subject may derive from long observation and real world experience, and is not dependent upon formal training or attainment of an academic degree in the subject” ( Miele v. American Tobacco Co., 2 A.D.3d 799, 802, 770 N.Y.S.2d 386;see Caprara v. Chrysler Corp., 52 N.Y.2d 114, 121, 436 N.Y.S.2d 251, 417 N.E.2d 545;McLamb v. Metropolitan Suburban Bus Auth., 139 A.D.2d at 572, 527 N.Y.S.2d 73). Here, the Supreme Court did not improvidently exercise its discretion in recognizing the defendants' witness as an expert in the field of accident reconstruction. Moreover, contrary to the plaintiff's contention, the defendants' expert's testimony was properly admitted since it was “based on facts in the record and his own analysis, not speculation” ( Plainview Water Dist. v. Exxon Mobil Corp., 66 A.D.3d 754, 755, 888 N.Y.S.2d 521;see Shi Pei Fang v. Heng Sang Realty Corp., 38 A.D.3d 520, 835 N.Y.S.2d 194).
The plaintiff's remaining contentions are without merit.