DiGiacomo v County of Westchester

DiGiacomo v County of Westchester 2013 NY Slip Op 08402 Decided on December 18, 2013 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 18, 2013
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
PETER B. SKELOS, J.P.
THOMAS A. DICKERSON
JEFFREY A. COHEN
SYLVIA O. HINDS-RADIX, JJ.
2012-00859
(Index No. 3461/08)

[*1]Christopher DiGiacomo, appellant,

v

County of Westchester, et al., respondents.




Reisman, Rubeo & McClure, LLP, Hawthorne, N.Y. (Christopher
W. McClure of counsel), for appellant.
Robert F. Meehan, County Attorney, White Plains, N.Y. (James
Castro-Blanco and Thomas G.
Gardiner of counsel), for respondents.


DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Westchester County (Liebowitz, J.), entered December 19, 2011, which, upon a jury verdict on the issue of damages finding that the plaintiff did not sustain an injury as a result of the subject accident, and upon the denial of his oral application pursuant to CPLR 4404(a) to set aside the verdict as contrary to the weight of the evidence and for a new trial on the issue of damages, is in favor of the defendants and against him dismissing the complaint.

ORDERED that the judgment is affirmed, with costs.

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 NY2d 744; Cohen v Hallmark Cards, 45 NY2d 493; Nicastro v Park, 113 AD2d 129). Where, as here, conflicting expert testimony is presented, the jury is entitled to accept one expert's opinion, and reject that of another expert (see Liounis v New York City Tr. Auth., 92 AD3d 643; Morales v Interfaith Med. Ctr., 71 AD3d 648, 650). Here, a fair interpretation of the evidence supports the jury's finding that the plaintiff did not sustain an injury as a result of the subject accident.

The plaintiff's remaining contention is without merit.
SKELOS, J.P., DICKERSON, COHEN and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court