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

19
CA 16-00868
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, AND LINDLEY, JJ.


DOUGLAS J. DANNER AND DONNA L. DANNER,
PLAINTIFFS-RESPONDENTS,

                      V                           MEMORANDUM AND ORDER

RAYMOND J. CAMPBELL, DEFENDANT-APPELLANT.


KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (AARON M. ADOFF OF COUNSEL),
FOR DEFENDANT-APPELLANT.

VINAL & VINAL, P.C., BUFFALO (GREGG S. MAXWELL OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (Patrick
H. NeMoyer, J.), entered November 9, 2015. The order granted the
motion of plaintiffs to set aside a verdict and directed a new trial
on liability.

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

     Memorandum: Defendant appeals from an order granting plaintiffs’
motion to set aside the jury verdict as against the weight of the
evidence and ordering a new trial. 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’ ” (Ruddock v Happell,
307 AD2d 719, 720, quoting Dannick v County of Onondaga, 191 AD2d 963,
964; see Lolik v Big V Supermarkets, 86 NY2d 744, 746; McMillian v
Burden, 136 AD3d 1342, 1343). “[T]he question whether a verdict is
against the weight of the evidence involves what is in large part a
discretionary balancing of many factors” (Cohen v Hallmark Cards, 45
NY2d 493, 499). We agree with Supreme Court that the jury’s
determination finding plaintiff Douglas J. Danner 75% at fault for the
accident and defendant only 25% at fault is against the weight of the
evidence (see Bonds v Laidlaw Tr., Inc., 61 AD3d 1345, 1346).




Entered:    February 3, 2017                    Frances E. Cafarell
                                                Clerk of the Court
