Delay v. Rhinehart

Oct 4, 1991
Appeal No. 1
Versions:176 A.D.2d 1211
576 N.Y.S.2d 830
1991 N.Y. App. Div. LEXIS 13881

— Judgment unanimously affirmed without costs. Memorandum: A jury verdict in favor of defendant should not be set aside unless the evidence in favor of plaintiff is so great that the verdict could not have been reached upon any fair interpretation of the evidence (Kuncio v Fillmore Hosp., 117 AD2d 975, 976, lv denied 68 NY2d 608; Nicastro v Park, 113 AD2d 129, 134; Incardona v Home Indem. Co., 60 AD2d 749; Boyle v Gretch, 57 AD2d 1047, 1048). It is for the trier of the facts to make determinations as to the credibility of the witnesses (see, Weber v State of New York, 107 AD2d 929, 931), and the jury is free to accept or reject the opinions of expert witnesses (see, Felt v Olson, 74 AD2d 722, 723, ajfd 51 NY2d 977). Based upon our review of the record, we conclude that the jury’s determination that plaintiff’s medical condition was not the result of an automobile accident *1212with defendant’s vehicle is not against the weight of the credible evidence. By failing to object to Dr. Baker’s testimony on the grounds he now advances, plaintiff failed to preserve his present contentions for review. (Appeal from Judgment of Supreme Court, Onondaga County, Stone, J. — Negligence.) Present — Doerr, J. P., Boomer, Green, Lawton and Davis, JJ.