

Gray Line N.Y. Tours, Inc. v Big Apple Moving & Stor., Inc. (2016 NY Slip Op 04455)





Gray Line N.Y. Tours, Inc. v Big Apple Moving & Stor., Inc.


2016 NY Slip Op 04455


Decided on June 9, 2016


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on June 9, 2016

Mazzarelli, J.P., Acosta, Saxe, Kapnick, Kahn, JJ.


1425 114496/09

[*1]Gray Line New York Tours, Inc., et al., Plaintiffs-Appellants,
vBig Apple Moving & Storage, Inc., Defendant-Respondent, Salvador Skerret, Defendant. [And a Third-Party Action]


The Law Offices of Christopher P. DiGiulio, P.C., New York (William Thymius of counsel), for appellants.
Molod Spitz & DeSantis, P.C., New York (Marcy Sonneborn of counsel), for respondent.

Judgment, Supreme Court, New York County, (Martin Shulman, J.), entered May 6, 2015, upon a jury verdict in favor of defendants, unanimously affirmed, without costs.
The verdict was legally supported by sufficient evidence
and was not against the weight of the evidence (see Cohen v Hallmark Cards , 45 NY2d 493, 498-499 [1978]; Lolik v Big V Supermarkets , 86 NY2d 744, 746 [1995]), and the jury was free to rationally credit the defendant driver's statement that the accident was caused by unanticipated brake failure, rather than the alternative causes propounded by plaintiffs.
The court properly declined to direct a verdict, enter a judgment notwithstanding the verdict or preclude Big Apple from presenting evidence of a nonnegligent cause of the accident based on statements of its counsel or the pleadings in the third-party complaint because, to the extent facts were stated, the statements were not conclusive and constituted a permissive alternative pleading under CPLR 3014 (see People v Brown,  98 NY2d 226, 232 n 2 [2002]).
We have considered plaintiffs' remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JUNE 9, 2016
CLERK


