         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
77
CA 12-01322
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ.


CLAUDETTE V. SAUTER, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

PETER A. CALABRETTA, DEFENDANT-APPELLANT.


MACKENZIE HUGHES LLP, SYRACUSE (SAMANTHA MILLER OF COUNSEL), FOR
DEFENDANT-APPELLANT.

STANLEY LAW OFFICES, LLP, SYRACUSE (JOHN COOPER OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Onondaga County (James
P. Murphy, J.), entered March 22, 2012 in a personal injury action.
The order, inter alia, granted plaintiff’s motion to set aside the
jury verdict.

     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: In this negligence action, plaintiff seeks damages
for injuries that she sustained when she was struck by a vehicle
operated by defendant while she was walking on the right side of a
road. The jury returned a verdict in defendant’s favor, but Supreme
Court thereafter granted plaintiff’s motion to set aside the verdict
as against the weight of the evidence and directed that a new trial be
conducted (see CPLR 4404 [a]). Defendant appeals. We reverse and
reinstate the verdict.

     “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., Inc., 79 AD3d 1827, 1828, lv dismissed 17
NY3d 734 [internal quotation marks omitted]; see Lolik v Big V
Supermarkets, 86 NY2d 744, 746; Parr v Mongarella, 77 AD3d 1429,
1429). Although “[t]hat determination is addressed to the sound
discretion of the trial court, . . . 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 Harris v Armstrong,
97 AD2d 947, 947, affd 64 NY2d 700; Todd v PLSIII, LLC–We Care, 87
AD3d 1376, 1377; Parr, 77 AD3d at 1429-1430). Further, it “is within
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                                                         CA 12-01322

the province of the jury to determine issues of credibility, and great
deference is accorded to the jury given its opportunity to see and
hear the witnesses” (Seong Yim Kim v New York City Tr. Auth., 87 AD3d
531, 532 [internal quotation marks omitted]).

     It is undisputed that the accident at issue occurred at
approximately 11:00 p.m. in a dark area with only minimal artificial
lighting. Defendant testified that he was driving at the speed limit
of 40 miles per hour in the right lane of the subject road when he saw
“a big blur of . . . dark red or something” about 10 feet in front of
him on the right. According to defendant, the blur was to the left of
the fog line. The impact occurred one to two seconds after defendant
perceived the blur in his peripheral vision, and he testified that he
“had no time to react.” Defendant’s passenger-side mirror struck
plaintiff in the back and threw her “to the right a little bit and a
distance” from the point of impact. Plaintiff landed face-first in a
puddle, slightly to the right of a drainage gutter that ran along the
shoulder of the road. The “far right” portion of the vehicle’s
windshield and its passenger-side mirror were damaged by the impact.

     It is further undisputed that conditions at the time of the
accident would have substantially reduced defendant’s ability to
perceive and react to plaintiff and the friend with whom she was
walking at that time. Plaintiff and her friend were walking shoulder-
to-shoulder on the right side of the road with their backs to traffic;
plaintiff, who was walking closest to the road, was wearing a dark red
hooded sweatshirt and blue jeans, and she did not recall whether her
hood was up or down; neither plaintiff nor her friend was wearing
reflective clothing, and they were not carrying flashlights; the
investigating officer testified that the north side of the subject
road has a “very narrow” shoulder, and, according to plaintiff’s
friend, the fog line separating the shoulder from the roadway was so
“faded” that she could “[b]arely” see it; the shoulder was also
bisected by the drainage gutter that at the time of the accident
contained an accumulation of water from an earlier rainfall, requiring
plaintiff and her friend to walk around the resulting puddles;
plaintiff’s grandmother testified that “you can’t see very well” at
night on the subject road; and, although plaintiff’s friend insisted
that they “never” crossed the fog line, she also testified that she
“wasn’t paying attention to [the fog line],” that she did not see
plaintiff’s feet at the time of the accident, and that she never saw
the wheels of defendant’s vehicle cross the fog line.

     Although by granting the posttrial motion the court agreed with
plaintiff that defendant was negligent in failing to see what was
there to be seen, we nevertheless agree with defendant that reasonable
persons could have found that he was not negligent given the foregoing
trial evidence (see Todd, 87 AD3d at 1376-1378; Seong Yim Kim, 87 AD3d
at 532-533; Parr, 77 AD3d at 1430). The court therefore erred in
setting aside the jury’s verdict (see generally Nicastro v Park, 113
AD2d 129, 135).
Entered: February 8, 2013                       Frances E. Cafarell
                                                Clerk of the Court
