Bendersky v. M & O Enterprises Corp.
Opinion of the Court
In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Nassau County (Dunne, J.), entered September 27, 2001, which granted the plaintiffs’ motion pursuant to CPLR 4404 (a) to set aside a jury verdict in its favor on the issue of liability, and granted a new trial.
Ordered that the order is affirmed, with costs.
The injured plaintiff allegedly slipped and fell on the floor of an indoor flea market owned by the defendant. At trial, the
Although the plaintiffs failed to preserve their argument that the verdict was inconsistent by not objecting to the verdict on that ground before the jury was discharged (see Disla v DHL Airways, 219 AD2d 612, 613; Gross v Fontano, 206 AD2d 505), their claim that the verdict was against the weight of the evidence was preserved and meritorious. It is well settled that a jury verdict should only be set aside as against the weight of the evidence when it could not have been reached on any fair interpretation of the evidence (see Aprea v Franco, 292 AD2d 478; Nicastro v Park, 113 AD2d 129, 133). A trial court’s decision to set aside the verdict and grant a new trial must be accorded great respect (see Nicastro v Park, supra at 136). Here, the jury could not have found that the defendant’s negligence in failing to adequately clean the spill was not a substantial factor in causing the accident on any fair interpretation of the evidence. Accordingly, the trial court providently exercised its discretion in setting aside the jury verdict and granting a new trial. Altman, J.P., Goldstein, McGinity and Mastro, JJ., concur.
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