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Syrkett v. Burden

Appellate Division of the Supreme Court of New York, Second Department
Oct 28, 1991
176 A.D.2d 938 (N.Y. App. Div. 1991)

Opinion

October 28, 1991

Appeal from the Supreme Court, Nassau County (Kutner, J.).


Ordered that the order is affirmed, with costs.

It is well settled that a jury verdict will be set aside as contrary to the weight of the evidence only when the jury could not have reached its verdict on any fair interpretation of the evidence (see, Cohen v. Hallmark Cards, 45 N.Y.2d 493; Jackalow v Consoli, 166 A.D.2d 414; Nicastro v. Park, 113 A.D.2d 129). In the instant case, we find that the jury's verdict was based upon a fair interpretation of the evidence and therefore should not be disturbed (see, Hershkowitz v. Saint Michel, 143 A.D.2d 809).

At the trial on the issue of damages, liability having been determined after the court struck the defendant's answer owing to her failure to appear at a deposition, the plaintiff adduced evidence that she sustained, inter alia, a herniated disc when her vehicle was struck in the rear by the defendant's automobile. The plaintiff testified about the pain she endured, and the activities in which she was no longer able to participate. Expert testimony was adduced suggesting that the accident was in fact the cause of the plaintiff's injuries. The defendant, however, produced contradictory medical testimony from her own expert, who stated that the plaintiff's injuries were the result of a congenital and degenerative curvature of her spine, which caused the herniation of the disc. Moreover, the defendant's expert testified that the herniation was not acute, and that no pressure was being exerted upon the spinal cord. He thus testified, in essence, that he doubted that the herniated disc was capable of causing the symptoms of which the plaintiff complained.

As the foregoing illustrates, the conflicting evidence adduced at the trial created a question of credibility between the parties' witnesses. It is axiomatic that great deference should be afforded to the conclusion of the fact-finder which saw and heard the witnesses (Nicastro v. Park, supra, at 136). The jury's verdict in this case reasonably credited the testimony of the defendant's expert. Moreover, in light of the dearth of evidence concerning the accident itself, and the evidence that the plaintiff drove her car to a police station following the accident, where she eschewed medical treatment, and then drove to a hospital, where she was examined and released, the jury's verdict in favor of the defendant rested upon a fair interpretation of the evidence (see, Norfleet v. New York City Tr. Auth., 124 A.D.2d 715).

The plaintiff's claim that the jury improperly considered the issue of liability in determining that no damages were sustained is without merit. At the trial on the issue of damages the plaintiff was still required to prove the extent of the damages sustained (see, Paulson v. Kotsilimbas, 124 A.D.2d 513). In any event, the plaintiff's counsel acquiesced in the decision to submit to the jury the issue of whether the accident was a proximate cause of the plaintiff's injuries and counsel actively argued in support of such a finding. Accordingly, having charted her own course, the plaintiff may not now be heard to complain of the result (see, Orens v. Secofsky, 60 A.D.2d 866). Thompson, J.P., Kunzeman, Lawrence and Miller, JJ., concur.


Summaries of

Syrkett v. Burden

Appellate Division of the Supreme Court of New York, Second Department
Oct 28, 1991
176 A.D.2d 938 (N.Y. App. Div. 1991)
Case details for

Syrkett v. Burden

Case Details

Full title:ALICE SYRKETT, Appellant, v. JANE E. BURDEN, Respondent

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Oct 28, 1991

Citations

176 A.D.2d 938 (N.Y. App. Div. 1991)
575 N.Y.S.2d 550

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