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

124
CA 11-02557
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ.


MARIA L. JAOUDE, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

MATTHEW E. HANNAH, L.P. PARNASSOS AND RITA J.
BIONDO, DEFENDANTS-RESPONDENTS.
(APPEAL NO. 2.)


LAWRENCE A. SCHULZ, ORCHARD PARK, FOR PLAINTIFF-APPELLANT.

HARRIS BEACH PLLC, PITTSFORD (A. VINCENT BUZARD OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS MATTHEW E. HANNAH AND L.P. PARNASSOS.

HAGELIN KENT LLC, BUFFALO (VICTOR WRIGHT OF COUNSEL), FOR
DEFENDANT-RESPONDENT RITA J. BIONDO.


     Appeal from an order and judgment (one paper) of the Supreme
Court, Erie County (Donna M. Siwek, J.), entered April 1, 2011 in a
personal injury action. The order and judgment, inter alia, dismissed
plaintiff’s complaint on the merits as to all defendants.

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

     Memorandum: Plaintiff commenced this action to recover damages
for injuries she allegedly sustained as a result of a motor vehicle
accident involving defendant Matthew E. Hannah and a second motor
vehicle accident, which occurred approximately 45 minutes later,
involving defendant Rita J. Biondo. At the time of the accident,
Hannah was driving a utility truck owned by his employer, defendant
L.P. Parnassos (Parnassos), during the course of his employment, and
any liability on the part of Parnassos would be vicarious only (see
generally Fenster v Ellis, 71 AD3d 1079, 1080).

     A jury trial was held during which Biondo conceded that she was
negligent in the operation of her vehicle. Following the trial, the
jury returned a verdict of no cause of action based on its
determination that Hannah was not negligent in the operation of his
vehicle and that plaintiff had not sustained a serious injury as a
result of the accident with Biondo. Plaintiff appeals from an order
and judgment that, inter alia, denied her motion seeking to set aside
the verdict as against the weight of the evidence or, in the
alternative, seeking judgment notwithstanding the verdict on the
issues of negligence and causation. We reject plaintiff’s contention
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                                                         CA 11-02557

that Supreme Court erred in denying her motion.

     “A jury verdict should not be set aside as against the weight of
the evidence unless the verdict could not have been reached upon any
fair interpretation of the evidence” (Enright v Bryne, 20 AD3d 549,
549; see Garrett v Manaser, 8 AD3d 616, 616; Aprea v Franco, 292 AD2d
478, 478). “The determination of the jury, which observed the
witnesses and the evidence, is entitled to great deference” (Enright,
20 AD3d at 549; see Hernandez v Carter & Parr Mobile, 224 AD2d 586,
587).

     We conclude that the verdict with respect to Hannah was not
against the weight of the evidence. Plaintiff’s accident with Hannah
occurred shortly after a significant snowstorm, which resulted in
extensive tree damage, as well as power and overhead utility line
damage. Hannah was in the process of backing out of a driveway when
his vehicle collided with plaintiff’s vehicle. Hannah testified that,
as he was backing up, he was driving at a rate of speed of between one
and two miles per hour and had engaged the rear back-up lights and
alarm, as well as two flashing yellow beacon lights located on the
truck’s roof. He also testified that his line of sight was obstructed
by piles of tree branches and snow on both sides of the driveway.
Plaintiff testified that she never saw Hannah’s vehicle prior to the
collision. Thus, based on the evidence presented at trial, the jury
could reasonably conclude that Hannah was not negligent in his
operation of the utility truck. Inasmuch as the jury’s verdict with
respect to Hannah was supported by a fair interpretation of the
evidence, we decline to disturb it. We also conclude that the verdict
with respect to Biondo was not against the weight of the evidence. It
cannot be said that the evidence regarding plaintiff’s alleged serious
injury preponderates so heavily in plaintiff’s favor that the verdict
with respect to that issue could not have been reached on any fair
interpretation of the evidence (see Lopreiato v Scotti, 101 AD3d 829,
829-830).

     Contrary to plaintiff’s alternative contention with respect to
Hannah, she was not entitled to judgment notwithstanding the verdict
on the issue of Hannah’s alleged negligence (see generally Cohen v
Hallmark Cards, 45 NY2d 493, 499). Contrary to plaintiff’s
alternative contention with respect to Biondo, she was not entitled to
judgment notwithstanding the verdict determining that, as a result of
the accident, she sustained a serious injury. Given the conflicting
testimony of plaintiff’s experts and defendants’ expert on the issues
whether plaintiff sustained a serious injury and the causation of her
alleged injuries, it cannot be said that there is “no valid line of
reasoning and permissible inferences which could possibly lead
rational [persons] to the conclusion reached by the jury on the basis
of the evidence presented at trial” (id. at 499; see Pawlaczyk v
Jones, 26 AD3d 822, 823, lv denied 7 NY3d 701).

     Finally, we reject plaintiff’s contention that the court
committed reversible error by permitting the attorney for Hannah and
Parnassos to cross-examine plaintiff using physical therapy and
medical records that were not in evidence. Even assuming, arguendo,
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                                                        CA 11-02557

that the court erred in permitting that line of questioning, we
conclude that the error “would not have affected the result” of this
action and that any such error therefore is harmless (Palmer v Wright
& Kremers, 62 AD2d 1170, 1170; see Cook v Oswego County, 90 AD3d 1674,
1675).




Entered:   March 22, 2013                      Frances E. Cafarell
                                               Clerk of the Court
