

Mardakhayev v City of New York (2016 NY Slip Op 05910)





Mardakhayev v City of New York


2016 NY Slip Op 05910


Decided on August 31, 2016


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on August 31, 2016
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

WILLIAM F. MASTRO, J.P.
L. PRISCILLA HALL
SANDRA L. SGROI
BETSY BARROS, JJ.


2015-03852
 (Index No. 500560/11)

[*1]Allen Mardakhayev, etc., et al., appellants, 
vCity of New York, respondent.


Sim & Record, LLP, Bayside, NY (Sang J. Sim of counsel), for appellants.
Zachary W. Carter, Corporation Counsel, New York, NY (Richard Dearing, Susan Greenberg, and Amanda Sue Nichols of counsel), for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Kings County (Jimenez-Salta, J.), entered January 20, 2015, which, upon a jury verdict on the issue of liability, is in favor of the defendant and against them dismissing the complaint.
ORDERED that the judgment is affirmed, with costs.
"[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" (Sokolik v Pateman, 114 AD3d 839, 840; see Lolik v Big V Supermarkets, 86 NY2d 744, 746). "Whether a jury verdict should be set 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" (Sokolik v Pateman, 114 AD3d at 840-841; see Cohen v Hallmark Cards, 45 NY2d 493, 499; Nicastro v Park, 113 AD2d 129, 133). Here, the jury's determination that the defendant did not affirmatively create the alleged hazardous condition that caused the infant plaintiff to fall was supported by a fair interpretation of the evidence (see generally Yarborough v City of New York, 10 NY3d 726; Nicastro v Park, 113 AD2d 129).
The plaintiffs' remaining contentions are without merit.
MASTRO, J.P., HALL, SGROI and BARROS, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


