Graviano v. N.Y.C. Transit Auth.

202 A.D.3d 932

159 N.Y.S.3d 693 (Mem)

Paul GRAVIANO, appellant,

v.NEW YORK CITY TRANSIT AUTHORITY, et al., respondents.

2019–03097

Index No. 8143/15

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

Argued—December 10, 2021

February 16, 2022

Frekhtman & Associates, Brooklyn, N.Y. (Eileen Kaplan and Richard Mogg of counsel), for appellant.

Anna Ervolina, Brooklyn, N.Y. (Timothy J. O'Shaughnessy of counsel), for respondents.

COLLEEN D. DUFFY, J.P., ANGELA G. IANNACCI, JOSEPH J. MALTESE, WILLIAM G. FORD, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Pamela L. Fisher, J.), dated January 24, 2019. The order denied the plaintiff's motion pursuant to CPLR 4404(a) to set aside a jury verdict in favor of the defendants and for judgment as a matter of law or, in the alternative, for a new trial on the issue of liability.

ORDERED that the order is affirmed, with costs.

On September 10, 2014, the plaintiff, who was riding a bicycle down Avenue U in Brooklyn, collided into the side of a bus. The plaintiff commenced this personal injury action against the driver of the bus, Jay Belfleur, and the New York City Transit Authority.

After a trial, the jury determined that the defendants were negligent, but that their negligence was not a substantial factor in causing the accident. Subsequently, the plaintiff moved pursuant to CPLR 4404(a) to set aside the jury verdict and for judgment as a matter of law or, in the alternative, for a new trial on the issue of liability. The Supreme Court denied the motion, and the plaintiff appeals.

Because the plaintiff failed to object to the verdict as inconsistent prior to the discharge of the jury, he waived his objection to the verdict upon that ground (see Barry v. Manglass, 55 N.Y.2d 803, 806, 447 N.Y.S.2d 423, 432 N.E.2d 125 ; Cruz–Rivera v. National Grid Energy Mgt., LLC, 190 A.D.3d 687, 688, 135 N.Y.S.3d 887 ). Moreover, the jury's determination that the defendants were negligent but that their negligence was not a substantial factor in causing the accident was not contrary to the weight of the evidence. A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence (see Lolik v. Big V Supermarkets, Inc., 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163 ; Nicastro v. Park, 113 A.D.2d 129, 134, 495 N.Y.S.2d 184 ). "A jury's finding that a party was at fault but that such fault was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause" ( Brennan v. Gormley, 181 A.D.3d 552, 553, 121 N.Y.S.3d 77 [internal quotation marks...