        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1342
CA 14-00617
PRESENT: CENTRA, J.P., FAHEY, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


MARY AMOROSI, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

SARAH HUBBARD, DEFENDANT-APPELLANT.


MCCABE, COLLINS, MCGEOUGH & FOWLER, LLP, BUFFALO (TAMARA M. HARBOLD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LOTEMPIO & BROWN, P.C., BUFFALO (BRIAN J. BOGNER OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Henry J.
Nowak, Jr., J.), entered January 9, 2014. The order granted
plaintiff’s motion to set aside the jury verdict and ordered a new
trial.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is denied
and the verdict is reinstated.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she sustained when she walked across a street and was struck
by a vehicle operated by defendant. At trial, the jury rendered a
verdict finding that defendant was negligent but that such negligence
was not a proximate cause of the accident. Plaintiff thereafter moved
to set aside the verdict as against the weight of the evidence or as
the result of substantial jury confusion, and Supreme Court granted
the motion on both grounds.

      As a preliminary matter, we agree with the court that the
bifurcated trial stipulation entered into by the parties did not
preclude plaintiff from bringing the posttrial motion. The
stipulation precluded the parties from bringing pretrial motions on
liability and motions for a directed verdict, but it was silent with
respect to posttrial motions (see Matamoros v Tovbin, 82 AD3d 941,
942).

     We agree with defendant, however, that the court erred in
granting the motion on either asserted ground. “A verdict rendered in
favor of a defendant may be successfully challenged as against the
weight of the evidence only when the evidence so preponderated in
favor of the plaintiff that it could not have been reached on any fair
interpretation of the evidence” (Krieger v McDonald’s Rest. of N.Y.,
                                 -2-                          1342
                                                         CA 14-00617

Inc., 79 AD3d 1827, 1828, lv dismissed 17 NY3d 734 [internal quotation
marks omitted]; see Lolik v Big V Supermarkets, 86 NY2d 744, 746). “A
jury finding that a party was negligent but that such negligence 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’ ” (Cona v Dwyer, 292 AD2d 562,
563, quoting Rubin v Pecoraro, 141 AD2d 525, 527; see Santillo v
Thompson, 71 AD3d 1587, 1588-1589). Where, however, “a verdict can be
reconciled with a reasonable view of the evidence, the successful
party is entitled to the presumption that the jury adopted that view”
(Schreiber v University of Rochester Med. Ctr., 88 AD3d 1262, 1263
[internal quotation marks omitted]; see Hollamon v Vinson, 38 AD3d
1159, 1160).

     Here, the jury could have reasonably found from the evidence that
plaintiff was not crossing the street in the crosswalk; that it was a
dark, rainy evening; and that plaintiff emerged in defendant’s lane of
travel from between stopped vehicles. The jury could also reasonably
have found that, although defendant was negligent in, for example, the
manner in which she approached the intersection before turning left,
such negligence was not a proximate cause of the collision with
plaintiff after she made the turn. Thus, “the finding of proximate
cause did not inevitably flow from the finding of culpable conduct,”
and the verdict therefore is not against the weight of the evidence
(Hernandez v Baron, 248 AD2d 440, 440; see Nath v Brown, 48 AD3d 1166,
1167; Loder v Greco, 5 AD3d 978, 979; Rubin, 141 AD2d at 526-527).

     We conclude that there was no basis for the court to grant the
motion on the ground of substantial juror confusion (see Kelly v
Greitzer, 83 AD3d 901, 902-903; Nath, 48 AD3d at 1167). On its
initial verdict sheet, the jury mistakenly apportioned a percentage of
fault to defendant despite its finding that defendant’s negligence was
not a substantial factor in causing the accident, but the jury
requested a new verdict sheet before rendering its verdict. On the
new verdict sheet, the jury followed the instructions thereon and
reported its verdict after finding that defendant’s negligence was not
a substantial factor in causing the accident, without apportioning any
percentage of fault to defendant. The jury therefore “rectified the
inconsistency in its initial verdict” sheet (Mendez v Rochester Gen.
Hosp., 31 AD3d 1160, 1161, lv denied 7 NY3d 713).




Entered:   January 2, 2015                      Frances E. Cafarell
                                                Clerk of the Court
