Opinion
2012-11-21
John A. VACCARINO, et al., appellants, v. MAD DEN, INC., doing business as Café Strega, et al., respondents.
Costantino Fragale, Eastchester, N.Y., for appellants.
DANIEL D. ANGIOLILLO, J.P., RUTH C. BALKIN, PLUMMER E. LOTT, and SHERI S. ROMAN, JJ.
In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal from a judgment of the Supreme Court, Westchester County (Scheinkman, J.), entered September 20, 2010, which, upon a jury verdict, and an order of the same court entered August 30, 2010, among other things, denying the branch of their motion pursuant to CPLR 4404(a) which was to set aside the verdict as contrary to the weight of the evidence and for a new trial, is in favor of the defendants and against them dismissing the complaint and on the defendants' counterclaims and against them in the principal sum of $216,875.
ORDERED that the judgment is affirmed, without costs or disbursements.
A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence ( see Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163;Nicastro v. Park, 113 A.D.2d 129, 134, 495 N.Y.S.2d 184). Whether a jury verdict should be set aside as contrary to the weight of the evidence does not involve a question of law, but rather, requires a discretionary balancing of many factors ( see Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145;Fowler v. Jamaica Bus, 62 A.D.3d 943, 878 N.Y.S.2d 917). It is for the trier of fact to make determinations as to the credibility of witnesses, and great deference is accorded to the factfinders in this regard, as they had the opportunity to see and hear the witnesses ( see Alatzas v. National R.R. Passenger Corp., 67 A.D.3d 832, 888 N.Y.S.2d 431;Bertelle v. New York City Tr. Auth., 19 A.D.3d 343, 796 N.Y.S.2d 415). In this case, the jury verdict is supported by a fair interpretation of the evidence ( see Palermo v. Original California Taqueria, Inc., 72 A.D.3d 917, 898 N.Y.S.2d 502;Exarhouleas v. Green 317 Madison, LLC, 46 A.D.3d 854, 847 N.Y.S.2d 866;Rahman v. Smith, 40 A.D.3d 613, 835 N.Y.S.2d 404). Accordingly, the Supreme Court properly denied that branch of the appellants' motion pursuant to CPLR 4404(a) which was to set aside the verdict as contrary to the weight of the evidence and for a new trial.
The Supreme Court's charge, as a whole, adequately conveyed the proper legal principles to the jury ( see Nestorowich v. Ricotta, 97 N.Y.2d 393, 400–401, 740 N.Y.S.2d 668, 767 N.E.2d 125;Winderman v. Brooklyn/ McDonald Ave. Shoprite Assoc., Inc., 85 A.D.3d 1018, 925 N.Y.S.2d 637;Delong v. County of Chautauqua, 71 A.D.3d 1580, 896 N.Y.S.2d 791).
The appellants' remaining contentions are without merit.