Manne v Museum of Modern Art

Manne v Museum of Modern Art 2007 NY Slip Op 03351 [39 AD3d 368] April 19, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 6, 2007

Albert Manne et al., Appellants,
v
Museum of Modern Art, Respondent.

—[*1] Sacks and Sacks, LLP, New York (Scott N. Singer of counsel), for appellants.

Nicoletti Hornig & Sweeney, New York (Edward L. Doherty of counsel), for respondent.

Judgment, Supreme Court, New York County (Kibbie F. Payne, J.), entered March 21, 2006, upon the jury's special verdict, in favor of defendant, unanimously affirmed, without costs.

A jury verdict should not be set aside as against the weight of the evidence unless the jury could not have reached its conclusion upon any fair interpretation of the evidence (see Nicastro v Park, 113 AD2d 129 [1985]; Cornier v Spagna, 101 AD2d 141, 149 [1984]). Disputes as to proof are "for the jury to resolve in assessing all of the evidence as well as the credibility of the witnesses" (Niewieroski v National Cleaning Contrs., 126 AD2d 424, 425 [1987], lv denied 70 NY2d 602 [1987]). Here, the disputed factual issues and any inconsistencies between plaintiff's trial testimony and his prior testimony were placed before the jury, whose resolution of any conflicting evidence is entitled to deference, and is more than amply supported in the record.

There was no error in the trial court's refusal to give a missing documents charge since plaintiff failed to make a prima facie showing that the documents in question actually existed and were under defendant's control (Crespo v New York City Hous. Auth., 222 AD2d 300, 301 [1995]).

We have considered plaintiff's remaining arguments and find them unavailing. Concur—Mazzarelli, J.P., Sullivan, Sweeny, Malone and Kavanagh, JJ.