Biancono v Pierre

[*1] Biancono v Pierre 2005 NY Slip Op 51806(U) [9 Misc 3d 1126(A)] Decided on November 7, 2005 Civil Court Of The City Of New York, Kings County Nadelson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 7, 2005
Civil Court of the City of New York, Kings County

Adrian Biancono and JUDITH HOPPES, Plaintiffs

against

Jean Pierre and ABDUL HAI, Defendants



1450/00

Eileen N. Nadelson, J.

The instant personal injury action was bifurcated, and the only question for the jury at this proceeding was the determination of liability on the part of the co-defendants. The plaintiffs were passengers in Defendant Pierre's taxicab when it was involved in an accident with Defendant Hai's automobile. After all the evidence was presented, the jury found that Defendant Pierre was the only one legally responsible for the accident. Defendant Pierre's counsel immediately moved to set aside the verdict pursuant to the provisions of section 4404(a) of the CPLR.

Section 4404(a) of the CPLR states, in pertinent part, that:

After a trial...by a jury,...the court may set aside a verdict or any judgment

entered thereon and direct that judgment be entered in favor of a party

entitled to judgment as a matter of law...where the verdict is contrary to

the weight of the evidence....

The standard for determining whether a jury verdict is against the weight of the evidence is whether the evidence so preponderated in favor of the moving party that the verdict could not have been reached on any fair interpretation of the evidence. Bailey v. Wood, 256 AD2d 846, 681 N.Y.S.2d 658 (3d Dept. 1998). Whether the jury verdict should be set aside is basically a factual determination, Frances G. v. Vincent G., 145 AD2d 599, 536 N.Y.S.2d 138 (2d Dept. 1988), and even if testimony is controverted to some extent, if the jury could find supportive testimony credible, the jury's decision should not be set aside. See generally, Lincoln v. Austic and Black, 60 AD2d 487, 401 N.Y.S.2d 1020 (3d Dept. 1978).

Therefore, the court must look at the evidence as it was presented to ascertain whether the verdict could have been reached by any reasonable interpretation of the evidence. Schneir v. Victory Memorial Hospital et al., 272 AD2d 390, 707 N.Y.S.2d 371 (2d dept. 2000). In the [*2]instant case, Plaintiff Biancono stated that he noticed a red car on the left side of the taxi a few seconds prior to the impact, but did not see the actual collision which involved the left front of the taxicab and the right rear bumper of a red car. On the stand, Plaintiff stated that he could not state whether the red car he noticed before the accident was the same red car as that belonging to Defendant Hai. On cross-examination, counsel read from Plaintiff's Examination Before Trial, in which he stated that the red car must have crossed in front of the cab. Plaintiff explained that he made that statement, as he did on the stand, under the assumption that Defendant Hai's car and the one he saw before the accident were one and the same, but he could not state with any certainty that they were.

Defendant Pierre's own testimony, in the form of his EBT (Defendant Pierre passed away one year before the trial started), indicated that he was not paying attention to the road until the accident, and did not notice the other car until impact. It was also uncontroverted that Defendant Pierre was driving at approximately 50 miles per hour on a busy downtown street until half a block before the accident took place, at which point he decelerated to approximately 25-30 mile per hour.

Defendant Hai testified that he did not cut in front of Pierre's vehicle, but was making a right-hand turn when he was hit in the rear. The jury returned an unanimous verdict imposing liability solely on Defendant Pierre.

It is the proper function of the jury to assess the credibility of witnesses, to resolve conflicting testimony and determine all factual questions. See Felt v. Olson, 51 NY2d 977, 435 N.Y.S.2d 708 (1980). If the jury accepts one version of the facts, that finding cannot be disturbed unless the verdict is clearly contrary to the weight of the evidence or the law. Merely because the court might have differently decided the conflict, it cannot set aside a jury verdict. 55th Street Realty Corp. v. Socolow, 36 N.Y.S.2d 12, 1942 NY Misc. Lexis 1723 (Bronx County 1942).

Based on the evidence presented, the court cannot conclude that the jury's determination was not reached on a fair interpretation of the law. Donigi v. American Cyanamid Co., 57 AD2d 760, 394 N.Y.S.2d 422 (1st Dept. 1977). Therefore, Defendant Pierre's motion to set aside the jury verdict is denied.

Dated: November 7, 2005

__________________________

EILEEN N. NADELSON, J.C.C.