Lopreiato v. Scotti

• Decision Date: 12 December 2012
• Citation: 954 N.Y.S.2d 895,101 A.D.3d 829,2012 N.Y. Slip Op. 08495
• Parties: Onofrio LOPREIATO, etc., et al., plaintiffs, Nicola Lopreiato, etc., et al., appellants, v. Gavin SCOTTI, etc., et al., respondents.
• Court: New York Supreme Court — Appellate Division

101 A.D.3d 829

954 N.Y.S.2d 895

2012 N.Y. Slip Op. 08495

Onofrio LOPREIATO, etc., et al., plaintiffs,Nicola Lopreiato, etc., et al., appellants,

v.Gavin SCOTTI, etc., et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

Dec. 12, 2012.

Eric Turkewitz, New York, N.Y., for appellants.

Alan B. Brill, P.C., Suffern, N.Y. (Sheila S. Rosenrauch of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the plaintiffs Nicola Lopreiato and Vana Lopreiato appeal from an order of the Supreme Court, Westchester County (Liebowitz, J.), entered April 27, 2011, which, upon a jury verdict on the issue of damages finding that the plaintiff Nicola Lopreiato did not sustain a serious injury within the meaning of Insurance Law § 5102(d), denied their motion pursuant to CPLR 4404, inter alia, to set aside the verdict as against the weight of the evidence and for a new trial on the issue of damages.

ORDERED that the order is affirmed, with costs.

“[A] jury verdict in favor of a defendant should not be set aside as contrary to the weight of the evidence unless the evidence preponderates so heavily in the plaintiff's favor that the verdict could not have been reached on any fair interpretation of the evidence” ( Daniels v. Simon, 99 A.D.3d 658, 659, 951 N.Y.S.2d 745;see Lolik v. Big v. Supermarkets, 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163). “Whether a jury verdict should be *896set aside as contrary to the weight of the evidence does not involve a question of law, but rather requires a discretionary balancing of many factors” ( Jean–Louis v. City of New York, 86 A.D.3d 628, 628–629, 928 N.Y.S.2d 310;see Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145;Nicastro v. Park, 113 A.D.2d 129, 133, 495 N.Y.S.2d 184). “ ‘It is for the jury to make determinations as to the credibility of the witnesses, and great deference in this regard is accorded to the jury, which had the opportunity to see and hear the witnesses' ” ( Jean–Louis v. City of New York, 86 A.D.3d at 629, 928 N.Y.S.2d 310, quoting Exarhouleas v. Green 317 Madison, LLC, 46 A.D.3d 854, 855, 847 N.Y.S.2d 866). Here, contrary to the contention of the plaintiffs Nicola Lopreiato and Vana Lopreiato (hereinafter together the appellants), the jury's determination that Nicola Lopreiato did not sustain an injury under the 90/180 day category of Insurance Law § 5102(d) and, thus, that he did not sustain a...