Matter of Government Employees Ins. Co. V Albino

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of an uninsured motorist claim, Juan R. Albino appeals from a judgment of the Supreme Court, Queens County (Rios, J.), dated May 12, 2011, which, after a framedissue hearing, granted the amended petition. ORDERED that the judgment is affirmed, with costs.

The appellant sought uninsured motorist benefits under a policy of insurance issued by the petitioner for physical injuries he alleged were sustained in a hitand- run accident. The petitioner commenced this proceeding to permanently stay the arbitration.

Contrary to the appellant’s contention, the Supreme Court providently exercised its discretion in, in effect, granting the petitioner leave to amend the petition to include, inter alia, a claim that no hit-andrun accident had occurred. While CPLR 7503(c) provides that a party served with a demand for arbitration must seek a stay within 20 days thereafter or be precluded from doing so, it does not prohibit amendment of a timely petition (see Matter of Allcity Ins. Co. [Russo], 199 AD2d 88). Here, the petitioner sought a stay of arbitration within 20 days of being served with a demand for arbitration, and the proposed amendment did not result in any prejudice or surprise to the appellant (see CPLR 3025[b]; Matter of Allcity Ins. Co. [Russo], 199 AD2d at 88).

Where, as here, a case is determined after a hearing held before a justice, this Court’s power to review the evidence is as broad as that of the hearing court, taking into account in a close case the fact that the hearing judge had the advantage of seeing the witnesses (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499; Matter of Allstate Ins. Co. v Tae Hong Ji, 81 AD3d 940). We decline to disturb the Supreme Court’s determination, made after a framed-issue hearing, that there was no physical contact between the appellant’s vehicle and an alleged hit-andrun vehicle (see Matter of Allstate Ins. Co. v Tae Hong Ji, 81 AD3d at 940; Matter of Government Employees Ins. Co. v Steinmetz, 51 AD3d 1022).

The petitioner’s remaining contention is without merit. 2012 NY Slip Op 00517 Decided on January 24, 2012 Appellate Division, Second Department

Jury is Entitled to Believe One Expert Over Another

Liounis V New York City Tr. Auth.

In an action to recover damages for personal injuries, the defendant Moussa Zlita appeals from a judgment of the Supreme Court, Kings County (Schneier, J.), dated August 2, 2010, which, upon the denial of his motion pursuant to CPLR 4401, in effect, made at the close of the plaintiff’s case, for judgment as a matter of law on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), upon the denial of his renewed motion pursuant to CPLR 4401, made at the close of all the evidence, for judgment as a matter of law on the same ground, upon a jury verdict finding him 100% at fault in the happening of the accident, upon a jury verdict on the issue of damages awarding the plaintiff the principal sum of $175,000, and upon the denial of his motion pursuant to CPLR 4404(a) to set aside the jury verdict and for judgment as a matter of law or to set aside the jury verdict as contrary to the weight of the evidence, is in favor of the plaintiff and against him in the total sum of $187,288.75. ORDERED that the judgment is affirmed, with costs.

“To be entitled to judgment as a matter of law pursuant to CPLR 4401, a defendant has the burden of showing that there is no rational process by which the jury could find in favor of the plaintiff and against the moving defendant'” (Delaney v Delaney, 83 AD3d 647, 648, quoting Velez v Goldenberg, 29 AD3d 780, 781). ” In considering the motion for judgment as a matter of law, the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant'” (Delaney v Delaney, 83 AD3d at 648, quoting Szczerbiak v Pilat, 90 NY2d 553, 556). Contrary to the defendant Moussa Zlita’s contention, viewing the facts in the light most favorable to the plaintiff, there was a rational process by which the jury could find that the plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d).

Zlita’s challenge to the Supreme Court’s denial of that branch of his motion pursuant to CPLR 4404(a) which was to set aside the jury verdict and for judgment as a matter of law is also without merit, as there was a valid line of reasoning and permissible inferences which could lead rational people to the conclusion reached by the jury on the basis of the evidence presented at trial (see Cohen v Hallmark Cards, 45 NY2d 493, 499).

“A jury verdict should not be set aside as against the weight of the evidence unless the verdict could not have been reached on any fair interpretation of the evidence” (Rosenfeld v Baker, 78 AD3d 810, 811; see Lolik v Big V Supermarkets, 86 NY2d 744). “Where, as here, conflicting expert testimony is presented, the jury is entitled to accept one expert’s opinion, and reject that of another expert'” (Morales v Interfaith Med. Ctr., 71 AD3d 648, 650, quoting Ross v Mandeville, 45 AD3d 755, 757). “When a verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view” (Handwerker v Dominick L. Cervi, Inc., 57 AD3d 615, 616; see Tapia v Dattco, Inc., 32 AD3d 842, 842). Here, a fair interpretation of the evidence supports the jury’s conclusion that, based on the evidence before it, the plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject motor vehicle accident. 2012 NY Slip Op 00934 Decided on February 7, 2012 Appellate Division, Second Dep