Wiseberg v. Douglas Elliman-Gibbons and Ives, Inc.
| Decision Date | 29 February 1996 |
| Docket Number | ELLIMAN-GIBBONS |
| Citation | 638 N.Y.S.2d 82,224 A.D.2d 361 |
| Parties | Michael WISEBERG, et al., Plaintiffs-Respondents, v. DOUGLASAND IVES, INC., et al., Defendants-Appellants. |
| Court | New York Supreme Court — Appellate Division |
R.R. MacDonnell, for plaintiffs-respondents.
M. Majewski, for defendants-appellants.
Before ELLERIN, J.P., and RUBIN, NARDELLI, TOM and MAZZARELLI, JJ.
Order and judgment (one paper) of the Supreme Court, New York County (Jane Solomon, J.), entered on or about June 29, 1995, which granted plaintiffs' motion to set aside the damages portion of the verdict and directed a new trial on damages, is unanimously reversed, on the law and facts, the motion denied and the verdict reinstated, without costs or disbursements.
Each of plaintiffs' contentions regarding damages, including permanency of the injuries and the degree of alleged disability, was challenged at trial by defendants' medical experts. Since the credibility of witnesses and the resolution of conflicting testimony are proper matters for determination by the jury (Swensson v. New York, Albany Desp. Co., 309 N.Y. 497, 505, 131 N.E.2d 902), the jury's verdict, which awarded damages for pain and suffering and lost earnings but did not award damages for future pain and suffering, was not against the weight of the evidence. While the trial court has the power to set aside the jury's verdict if contrary to the weight of the evidence (CPLR 4404[a], the court must first conclude "that the jury could not have reached its verdict on any fair interpretation of the evidence" (Delgado v. Board of Education, 65 A.D.2d 547, 408 N.Y.S.2d 949, affd. 48 N.Y.2d 643, 421 N.Y.S.2d 198, 396 N.E.2d 481). However, on the evidence herein, it was an abuse of discretion for the trial court to reach this conclusion and grant the motion to set aside the damages portion of the verdict, and we accordingly reverse and reinstate the verdict.
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Jones v.
...Communications, Inc., 15 Misc. 3d at 756. See Mazariegos v. New York City Tr. Auth., 230 A.D.2d at 609; Wiseberg v. Douglas Elliman-Gibbons & Ives, 224 A.D.2d 361, 362 (1st Dep't 1996). While the jury was well within its function to assess each expert's credentials, reject all or part of th......
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Utsey v. City of N.Y.
...(1st Dep't 2000). See Mazariegos v. New York City Tr. Auth., 230 A.D.2d 608, 609–610 (1st Dep't 1996); Wiseberg v. Douglas Elliman–Gibbons & Ives, 224 A.D.2d 361, 362 (1st Dep't 1996). The absence of such evidence weighing against plaintiff and in favor of defendant poses an obvious impedim......
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Sheppard v. Blitman/Atlas Bldg. Corp.
...There is no basis to disturb the jury's apportionment of liability which is supported by the record (see, Wiseberg v Douglas Elliman-Gibbons and Ives, Inc., 224 A.D.2d 361, 362). The accident occurred when plaintiff stepped back to avoid being hit by falling lumber and slipped on ice covere......
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Delmar v. Burger King Corp., Index No.: 307681/2012
...the weight of the evidence and this court therefore has no power to set it aside. See Wiseberg v. Douglas Elliman-Gibbons and Ives, Inc., 224 A.D.2d 361, 362, 638 N.Y.S.2d 82 (1st Dept. 1996). The plaintiffs' motion must therefore be denied. Accordingly, it is hereby ORDERED that plaintiff'......