San George v. Prowse

Order unanimously reversed on the law without costs, motion denied and verdict reinstated. Memorandum: Supreme Court erred in granting plaintiff’s motion to set aside the verdict. “A motion to set aside a jury verdict of no cause of action 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” (Dannick v County of Onondaga, 191 AD2d 963, 964; see, Cohen v Hallmark Cards, 45 NY2d 493, 498-499). A fair interpretation of the evidence supports the jury’s determinations that plaintiffs daughter did not sustain a serious injury to her back attributable to the accident (see, Kupfer v Dalton, *989169 AD2d 819) and that the surgical scar on her foot does not constitute a significant disfigurement (see, Insurance Law § 5102 [d]; Spevak v Spevak, 213 AD2d 622, 622-623). We note that the court also erred in conditioning a new trial on the parties’ failure to settle for a specific sum. “It is the province of the jury and not the trial court to assess damages” (Bolles v County of Cattaraugus, 162 AD2d 975, rearg granted 166 AD2d 931). (Appeal from Order of Supreme Court, Chautauqua County, Gerace, J. — Set Aside Verdict.) Present — Green, J. P., Pine, Wisner, Hurlbutt and Callahan, JJ.