Opinion
November 16, 1994
Appeal from the Supreme Court, Chautauqua County, Gerace, J.
Present — Balio, J.P., Lawton, Wesley, Doerr and Davis, JJ.
Order unanimously reversed on the law without costs, motion denied and verdict reinstated. Memorandum: Supreme Court erred in granting plaintiffs' motion to set aside the jury verdict in favor of defendants. "It is settled law that a motion pursuant to CPLR 4404 (a) should not be granted unless the preponderance of the evidence in favor of the plaintiff is so great that the verdict could not have been reached upon any fair interpretation of the evidence" (Kuncio v. Millard Fillmore Hosp., 117 A.D.2d 975, 976, lv denied 68 N.Y.2d 608; see also, Frasier v McIlduff, 161 A.D.2d 856, 858). "Moreover, when the issue at trial involves the credibility of conflicting expert testimony, the resolution of that conflict is 'a matter peculiarly within the province of the jury'" (Martin v. Seaman, 184 A.D.2d 996, lv denied 80 N.Y.2d 759, quoting Shaw v. Binghamton Lodge No. 852, 155 A.D.2d 805, 806).
There was conflicting expert testimony whether defendants' treatment of plaintiff Thomas Regelski deviated from accepted medical practice. The jury resolved that issue in defendants' favor, and we cannot conclude that the verdict could not have been reached "upon any fair interpretation of the evidence" (Kuncio v. Millard Fillmore Hosp., supra, at 976).