Niewieroski v. National Cleaning Contractors

• Decision Date: 08 January 1987
• Citation: 510 N.Y.S.2d 127,126 A.D.2d 424
• Parties: Alan NIEWIEROSKI, Plaintiff-Respondent, v. NATIONAL CLEANING CONTRACTORS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 127

510 N.Y.S.2d 127

126 A.D.2d 424

Alan NIEWIEROSKI, Plaintiff-Respondent, v. NATIONAL CLEANING CONTRACTORS, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Jan. 8, 1987.

J.P. Hoey, Mineola, for plaintiff-appellant.

D.J. Sullivan, New York City, for defendant-respondent.

Before KUPFERMAN, J.P., and ROSS, CARRO and KASSAL, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Walter M. Schackman, J.), entered May 8, 1985, granting plaintiff's motion to set aside a jury verdict as against the weight of the evidence pursuant to CPLR 4404(a) and ordering a new trial, unanimously reversed, on the law and on the facts, the verdict reinstated and the entry of judgment thereon directed in favor of defendant, without costs or disbursements.

On review of the record, we find that the trial justice erred in setting aside the verdict and ordering a new trial. In doing so, the court expressed its disagreement with the jury's verdict, pointing to the fact that "several clearly disinterested witnesses" for the plaintiff had testified as to the condition of the floor on which plaintiff slipped and the absence of any warning signs, in contrast to the one interested witness-employee of the defendant, who testified that there were "Caution Wet Floor" signs in place and, that, earlier in the evening, plaintiff had been verbally apprised of the condition of the floor. The fact that one party produced a greater number of witnesses is not dispositive in terms of the operative standard for setting aside a verdict as contrary to the weight of the evidence under CPLR 4404(a).

While it has been recognized that the statutory standard is somewhat "elusive" and requires "a discretionary balancing of many factors" (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, 132-133, 495 N.Y.S.2d 184), we held in Marton v. McCasland, 16 A.D.2d 781, 782, 228 N.Y.S.2d 756:

It is settled that a jury verdict in favor of defendant may not be set aside unless it plainly appears that the evidence so preponderates in favor of the plaintiff that the verdict for the defendant could not have been reached on any fair interpretation of the evidence. (Areson v Hempstead Bus Corp., 14 AD2d 790 ; Musumeci v Pillsbury Mills, 12 AD2d 941, 942 ; Holpp v Carafa, 8 AD2d 617 ; Scheuerman v Knapp Coal Co., 238 App Div 874, 875 ; Meyers v Hines, 199 App Div 594, 595 .)

On a motion to set aside a verdict as contrary to the weight of the evidence, it is necessary to consider all of the proof adduced to determine whether the verdict fairly reflects the evidence in the case. In passing upon such a motion, the trial court must act with utmost care, according great deference to the fact-finding function of the jury. Thus, in Nicastro v. Park, supra, the Appellate Division, Second Department, in referring to the need to proceed on such a motion with "considerable caution" since fact finding was the province of the jury, not the trial court, observed that the operative standard did not permit the trial justice to "freely interfere with any verdict that is unsatisfactory or with which it disagrees." (113 A.D.2d at p. 133, 495 N.Y.S.2d 184.)

In a thoughtful and well-reasoned opinion, Associate Justice Lazer further observed:

Analysis of the cases reveals that particular deference has traditionally been accorded to jury verdicts in favor of defendants in tort cases because the clash of factual contentions is often sharper and simpler in those matters and the jury need not find that a defendant has prevailed by a preponderance of the evidence but rather may simply conclude that the plaintiff has failed to meet the burden of proof requisite of establishing the defendant's culpability [citing cases].

Thus, it has often been stated that a jury verdict in favor of a defendant should not be set aside unless "the jury could not have reached the verdict on any fair interpretation of the evidence" (Delgado v Board of Educ., 65 AD2d 547 , affd 48 NY2d 643 [421 N.Y.S.2d 198, 396 N.E.2d 481]; Tripoli v Tripoli, 83 AD2d 764 , affd 56 NY2d 684 [451...