DENNIS, JEROME S. v. MASSEY, CLARKE E. ( 2015 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    1337
    CA 14-01184
    PRESENT: SCUDDER, P.J., SMITH, VALENTINO, AND DEJOSEPH, JJ.
    JEROME S. DENNIS, PLAINTIFF-APPELLANT,
    V                             MEMORANDUM AND ORDER
    CLARKE E. MASSEY, NIAGARA FRONTIER
    TRANSPORTATION AUTHORITY, NFTA METRO BUS,
    AND NFT METRO SYSTEM, INC., ALSO KNOWN AS
    NIAGARA FRONTIER TRANSIT METRO SYSTEM, INC.,
    DEFENDANTS-RESPONDENTS.
    (APPEAL NO. 1.)
    GELBER & O’CONNELL, LLC, AMHERST (TIMOTHY G. O’CONNELL OF COUNSEL),
    FOR PLAINTIFF-APPELLANT.
    DAVID J. STATE, GENERAL COUNSEL, BUFFALO (VICKY-MARIE J. BRUNETTE OF
    COUNSEL), FOR DEFENDANTS-RESPONDENTS.
    Appeal from a judgment of the Supreme Court, Erie County (Patrick
    H. NeMoyer, J.), entered March 25, 2014. The judgment was entered in
    favor of defendants as against plaintiff and awarded defendants costs
    and disbursements.
    It is hereby ORDERED that the judgment so appealed from is
    unanimously affirmed without costs.
    Memorandum: Plaintiff commenced this action seeking damages for
    injuries he allegedly sustained in a motor vehicle accident. He
    appeals from a judgment dismissing the complaint upon a jury verdict
    finding that he did not sustain a serious injury within the meaning of
    Insurance Law § 5102 (d) as the result of the accident.
    Contrary to plaintiff’s contention, Supreme Court properly denied
    his motions for a directed verdict, for judgment notwithstanding the
    verdict, and to set aside the verdict as against the weight of the
    evidence. With respect to plaintiff’s first two contentions, “[g]iven
    the conflicting testimony of plaintiff[’s] experts and defendants’
    expert[] both on the issues of serious injury and causation, we
    conclude that this is not an instance in which plaintiff[ is]
    ‘entitled to judgment as a matter of law’ ” (Pawlaczyk v Jones, 26
    AD3d 822, 823, lv denied 7 NY3d 701, quoting CPLR 4404 [a]; see Regdos
    v City of Buffalo, 132 AD3d 1343, 1343), because it cannot be said
    that there is “simply no valid line of reasoning and permissible
    inferences which could possibly lead rational [persons] to the
    conclusion reached by the jury on the basis of the evidence presented
    -2-                          1337
    CA 14-01184
    at trial” (Cohen v Hallmark Cards, 45 NY2d 493, 499). To the
    contrary, “there is a rational process by which the jury could have
    found that defendant[s’] negligence was not a substantial factor in
    causing plaintiff’s alleged injuries” (Bennice v Randall, 71 AD3d
    1454, 1455).
    The court also properly denied plaintiff’s motion to set aside
    the verdict as against the weight of the evidence. Plaintiff failed
    to establish that the evidence so preponderated in his favor that the
    verdict “could not have been reached on any fair interpretation of the
    evidence” (Lolik v Big V Supermarkets, 86 NY2d 744, 746 [internal
    quotation marks omitted]; see Schley v Steffans, 79 AD3d 1753, 1754;
    Cummings v Jiayan Gu, 42 AD3d 920, 922). Although plaintiff presented
    evidence that he sustained a serious injury with respect to his neck
    and lumbar spine, we note that “the conflicting medical expert
    testimony ‘raised issues of credibility for the jury to determine’ ”
    (Campo v Neary, 52 AD3d 1194, 1198; see generally Tallarico v Kolli,
    122 AD3d 1409, 1410; Barton v Youmans, 24 AD3d 1192, 1192).
    Furthermore, plaintiff presented only his testimony on the issue
    whether he sustained a serious injury within the meaning of the
    90/180-day category (see Insurance Law § 5102 [d]), and “plaintiff’s
    credibility was also an issue for the jury” (Salisbury v Christian, 68
    AD3d 1664, 1665). “[A] plaintiff may of course be impeached by his or
    her own testimony” (id.) and, based on the factors negatively
    impacting plaintiff’s credibility, we conclude that the verdict was
    not contrary to the weight of the evidence.
    Contrary to plaintiff’s final contention, the court properly
    denied his motion to set aside the verdict and for a new trial in the
    interest of justice where, as here, “there is no evidence that
    substantial justice has not been done” (Danieu v 109 S. Union St.,
    LLC, 56 AD3d 1292, 1293, lv denied 12 NY3d 710 [internal quotation
    marks omitted]). In his motion to set aside the verdict and on
    appeal, he contends that he was deprived of a fair trial by statements
    made by defendants’ attorney during summations, and by the court’s
    failure to give a PJI 2:305 instruction to the jury. Even assuming,
    arguendo, that plaintiff preserved for our review his contention with
    respect to the statements of defendants’ attorney on summation, we
    conclude that the majority of the statements were proper, and any
    impropriety that may have occurred was not so prejudicial as to
    deprive plaintiff of a fair trial (see Guthrie v Overmyer, 19 AD3d
    1169, 1171; cf. Huff v Rodriguez, 64 AD3d 1221, 1223-1224). In
    addition, the court “properly rejected the plaintiff[’s] request to
    charge the jury that the defendants were liable for any subsequent
    aggravation of the injuries due to subsequent medical treatment, or
    even subsequent medical malpractice (see PJI3d 2:305 [2004 Supp]),
    since there was no factual basis for such a charge” (Tatlici v APA
    Truck Leasing Corp., 8 AD3d 656, 656-657).
    Entered:   December 31, 2015                    Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: CA 14-01184

Filed Date: 12/31/2015

Precedential Status: Precedential

Modified Date: 11/1/2024