         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1077
CA 11-00326
PRESENT: SCUDDER, P.J., SMITH, CENTRA, GREEN, AND GORSKI, JJ.


MARY HERBST AND JEFFREY HERBST,
PLAINTIFFS-RESPONDENTS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

MARK MARSHALL, DEFENDANT-APPELLANT-RESPONDENT,
AND KENNETH F. GOULDING, DEFENDANT.


HAGELIN KENT LLC, BUFFALO (VICTOR M. WRIGHT OF COUNSEL), FOR
DEFENDANT-APPELLANT-RESPONDENT.

PAUL WILLIAM BELTZ, P.C., BUFFALO (KEVIN J. GRAFF OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS-APPELLANTS.


     Appeal and cross appeal from an order of the Supreme Court,
Niagara County (Ralph A. Boniello, III, J.), entered May 18, 2010 in a
personal injury action. The order granted the motion of plaintiffs to
set aside the jury verdict and for a new trial.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries allegedly sustained by Mary Herbst (plaintiff) when her
vehicle was rear-ended by a vehicle that in turn had been rear-ended
by a vehicle driven by Mark Marshall (defendant). Following a jury
trial, Supreme Court granted plaintiffs’ post-trial motion seeking, in
the alternative, to set aside the verdict as against the weight of the
evidence and for a new trial based on the jury’s finding that the
accident was not a substantial factor in causing an injury to
plaintiff. We affirm. “A motion to set aside a jury verdict as
against the weight of the evidence . . . should not be granted ‘unless
the preponderance of the evidence in favor of the moving party is so
great that the verdict could not have been reached upon any fair
interpretation of the evidence’ . . . That determination is addressed
to the sound discretion of the trial court, but if the verdict is one
that reasonable persons could have rendered after receiving
conflicting evidence, the court should not substitute its judgment for
that of the jury” (Ruddock v Happell, 307 AD2d 719, 720; see Lolik v
Big V Supermarkets, 86 NY2d 744, 746).

     Here, the first question on the verdict sheet was whether the
accident was “a substantial factor in causing an injury to” plaintiff.
The question was not whether plaintiff sustained a “serious” injury
                                 -2-                          1077
                                                         CA 11-00326

(see Insurance Law § 5102 [d]); questioning concerning whether
plaintiff sustained a serious injury appeared later in the verdict
sheet. While there was conflicting evidence presented at trial
whether plaintiff sustained a “serious” injury, it was undisputed that
she sustained “an” injury to her cervical spine (see generally Browne
v Pikula, 256 AD2d 1139). Indeed, defendant’s experts both opined
that plaintiff sustained a cervical strain as a result of the
accident. We therefore conclude that the evidence that the accident
was a substantial factor in causing an injury to plaintiff so
preponderates in favor of plaintiffs that the jury finding to the
contrary could not have been reached on any fair interpretation of the
evidence.

     We agree with defendant, however, that the court erred to the
extent it relied on a statement allegedly made by the jury foreperson
in support of its decision to set aside the verdict. “[A]bsent
exceptional circumstances, juror affidavits may not be used to attack
a jury verdict” (Grant v Endy, 167 AD2d 807, 808; see Phelinger v
Krawczyk, 37 AD3d 1153, 1153-1154). Here, there was in fact no
affidavit submitted by the jury foreperson, and the statement in
question upon which the court relied in part as the basis for its
decision was brought to the court’s attention by only hearsay
statements of plaintiffs’ attorney and investigator. Moreover, there
was no exception to the general rule that jurors may not impeach their
own verdict, i.e., there was no ministerial error in reporting the
verdict or evidence of substantial juror confusion (see Porter v
Milhorat, 26 AD3d 424; see also Grant, 167 AD2d at 807-808).
Nevertheless, for the reasons stated above concerning whether
plaintiff sustained an injury, we conclude that the court properly set
aside the verdict as against the weight of the evidence.

     We have considered the contentions of plaintiffs raised on their
cross appeal and conclude that they are without merit.




Entered:   November 10, 2011                    Patricia L. Morgan
                                                Clerk of the Court
