Mandelovitz v. Rockofsky

Jan 22, 2001
Versions:279 A.D.2d 557
719 N.Y.S.2d 672
2001 N.Y. App. Div. LEXIS 596

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Jones, J.), entered September 20, 1999, which, upon a jury verdict, and upon the denial of his motion pursuant to CPLR 4404 to set aside the verdict and for judgment in his favor as a matter of law, is in favor of the defendants and against him, dismissing the complaint.

Ordered that the judgment is affirmed, with one bill of costs.

The trial court properly denied the plaintiffs motion pursuant to CPLR 4404 to set aside the verdict, as the jury finding in favor of the defendants could have been reached on a fair interpretation of the evidence (see, Nicastro v Park, 113 AD2d 129, 134). The defendants presented evidence that the defendant driver Denise M. Rockofsky saw the plaintiff walking in the roadway in the middle of the block on the double yellow line from half a block away, that she sounded her horn and slowed her vehicle, and that the plaintiff then suddenly turned and ran in front of her vehicle. Upon being presented with this evidence, which conflicted sharply with the plaintiffs testimony and thereby created a factual dispute, the jury “resolved the controversy in favor of the defendant^] upon a fair interpretation of the evidence, [and] that finding should be sustained” (Nicastro v Park, supra, at 134; see also, Justice v Mendon Leasing Corp., 248 AD2d 443). The jury reasonably could have concluded that Rockofsky was not negligent (see, Justice v Mendon Leasing Corp., supra; Shachnow v Myers, 229 AD2d 432).

The plaintiffs remaining contentions are without merit. Bracken, Acting P. J., O’Brien, Florio and Schmidt, JJ., concur.