Tout v. Zsiros

2 Citing cases

  1. Harris v. Campbell

    155 A.D.3d 1622 (N.Y. App. Div. 2017)   Cited 5 times

    Plaintiffs' contention with respect to the photographs of defendant's vehicle is raised for the first time on appeal and thus is not properly before us (see Ciesinski v. Town of Aurora, 202 A.D.2d 984, 985, 609 N.Y.S.2d 745 [4th Dept.1994] ). We reject plaintiffs' contention with respect to the photographs of plaintiff's vehicle inasmuch as it is well established that "[p]hotographs showing no damage to a plaintiff's vehicle are admissible to impeach a plaintiff's credibility on the issue whether the accident caused the alleged injuries" ( Tout v. Zsiros, 49 A.D.3d 1296, 1297, 852 N.Y.S.2d 864 [4th Dept.2008], lv. denied 10 N.Y.3d 713, 861 N.Y.S.2d 274, 891 N.E.2d 309 [2008] ). Furthermore, "even when liability is not at issue, ‘proof as to the happening of an accident is probative and admissible as it describes the force of an impact or other incident that would help in determining the nature or extent of injuries and thus relate to the question of damages' " ( Anderson v. Dainack, 39 A.D.3d 1065, 1066, 834 N.Y.S.2d 564 [3d Dept.2007] ).

  2. Lifson v. City of Syracuse

    72 A.D.3d 1523 (N.Y. App. Div. 2010)

    We reject the contention of plaintiff on his appeal that the court erred in denying that part of his motion to set aside the verdict with respect to Klink as against the weight of the evidence. "A verdict rendered in favor of a defendant may be successfully challenged as against the weight of the evidence only when the evidence so preponderated in favor of the plaintiff that it could not have been reached on any fair interpretation of the evidence" ( Jaquay v Avery, 244 AD2d 730, 730-731; see Lolik v Big V Supermarkets, 86 NY2d 744, 746; Tout v Zsiros, 49 AD3d 1296, lv denied 10 NY3d 713). Here, the evidence, including Klink's trial testimony, established that Klink did not observe decedent when Klink began to turn at the intersection because decedent was not in the unmarked crosswalk and that he did not see her thereafter because he was suddenly and unexpectedly blinded by sun glare.