deGast v. Livingston

• Court: New York Supreme Court — Appellate Division
• Citation: deGast v. Livingston, 533 N.Y.S.2d 779, 144 A.D.2d 332 (N.Y. App. Div. 1988)
• Decision Date: 07 November 1988
• Parties: Gerrit deGAST, et al., Appellants, v. Martin W. LIVINGSTON, et al., Respondents.

Page 779

533 N.Y.S.2d 779

144 A.D.2d 332

Gerrit deGAST, et al., Appellants, v. Martin W. LIVINGSTON, et al., Respondents.

Supreme Court, Appellate Division Second Department.

Nov. 7, 1988.

Keegan, Keegan & Associates, P.C., White Plains (Sally Weinraub, of counsel), for appellants.

Sweeney & Calbrese, White Plains, for respondents Martin W. Livingston and Janice Livingston.

J. Russell Clune, P.C., Harrison (Edwin A. Frey, of counsel), for respondent Frank Presti.

Before MOLLEN, P.J., and THOMPSON, RUBIN and EIBER, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) a judgment of the Supreme Court, Westchester County (Wood, J.), entered June 22, 1987, which, upon a jury verdict after a trial on the issue of liability only, is in favor of the defendants and against them, and (2) an order of the same court, entered August 3, 1987, which denied their motion to set aside the verdict.

ORDERED that the judgment and order are affirmed, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

The plaintiffs commenced the instant action to recover, inter alia, damages for injuries allegedly sustained by the plaintiff Gerrit de Gast on April 10, 1984, while performing remodeling at the premises of the defendants Martin W. and Janice Livingston.

At the trial on the issue of liability Mr. deGast testified that while carrying French doors from the patio to the rear of the home, he stepped into a hole left by the defendant Frank Presti, a gardener, who had earlier removed shrubbery from the area where the accident occurred. Although Mr. deGast claimed that he had been assisted in carrying the doors by the defendants Livingstons' son Jeffrey, his testimony was refuted by Jeffrey's testimony at an examination before trial which was admitted in evidence at trial. Jeffrey denied both assisting Mr. deGast and witnessing the accident. Thus, the only support for Mr. deGast's version of the accident was his own testimony. Following the trial, the jury returned a verdict in favor of the defendants.

Initially the plaintiffs argue that the verdict in the defendants' favor was against the weight of the evidence. We disagree. It is well settled that a verdict will be set aside as against the weight of the evidence only if the jury determination could not have been reached upon any fair interpretation of the evidence (see, Burgess v. DeAngelis, 135 A.D.2d...