RECITATION, AS REQUIRED BY CPLR 2219 (A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION: Notice of Motion and Affirmation in Support 1, 2 Affirmation in Opposition 3 DECISION AND ORDER Following the bifurcated liability trial of an action to recover for injuries allegedly sustained as a result of a hit and run motor vehicle incident, the jury found that defendant was not negligent. Plaintiff moves for an order to set aside the verdict as against the weight of the evidence pursuant to CPLR 4404(a). Plaintiff testified at trial that on New Year’s Eve, 2015 at about 11:30 P.M. he walked one block from his home to a bodega where he stayed for ten minutes. On his way back home, while crossing Emmons Avenue, he was struck by a vehicle which left the scene. He described Emmons Avenue as a two way street separated by a cement divider with two traffic lanes in each direction. The divider is located in between two parking lanes. Plaintiff testified that he crossed two lanes of traffic, stepped on the cement divider, then took two to three steps on the road from in front of a parked vehicle when a motorist changed lanes and swerved, causing the left front side of the vehicle to strike plaintiff’s right leg. At the location where plaintiff attempted to cross the street, there was no crosswalk, traffic control device or streetlight. To set aside the verdict, plaintiff must establish that the jury could not have reached the verdict “by any fair interpretation of the evidence.” (See, Wilson v. County of Westchester, 148 AD3d 1091 [2d Dept 2017].) Great deference is accorded to the fact-finding function of the jury, and its determinations regarding the credibility of witnesses. (See, Avendano v. Stavrakos, 32 AD3d 449 [2d Dept 2006].) Here, plaintiff’s admission that he stepped into the street passed a parked vehicle together with his testimony that the point of contact was the side of the car provides ample basis to support the jury’s finding that the motorist was not negligent. (See, e.g., Mancia v. Metro. Tr. Auth. Long Is. Bus, 14 AD3d 665 [2d Dept 2005](holding that defendants established their prima facie entitlement to judgment as a matter of law by providing evidence that the plaintiff darted out from between two parked vehicles outside of a crosswalk, directly into the side of their vehicle.)) Moreover, in assessing the weight of a witness’s testimony, great deference is accorded to the fact-finding function of the jury, and its determinations regarding the credibility of witnesses. (See, Avendano v. Stavrakos, 32 AD3d 449 [2d Dept 2006].) In the case at bar, plaintiff testified inconsistently regarding material factual issues which the jury could have regarded as undermining his credibility. For instance, while plaintiff testified at trial that he observed the offending vehicle change lanes and swerve into him prior to impact, at his deposition plaintiff testified that he never saw the offending vehicle before the impact. Plaintiff’s inconsistent testimony regarding whether he saw the subject vehicle prior to the incident, could, in addition to undermining his credibility, underscore the breadth of his own negligence. If the jury rejected plaintiff’s afore-described trial testimony over his deposition testimony that he had not seen the vehicle before the impact, they could have reasonably found plaintiff negligent for failure to properly look out for oncoming traffic before stepping into the roadway passed a parked vehicle, and the motorist not negligent for lacking sufficient time to react when plaintiff stepped from the parking into the moving lane. Plaintiff’s testimony contained numerous other inconsistencies which could have further tarnished his credibility. He testified at trial that only twenty minutes elapsed from the time he had left home until the happening of the incident: he left his residence at 11:30 P.M., reached the bodega about 11:35 P.M, where he stayed until 11:45 P.M., and was struck by the vehicle five minutes after he left the bodega at about 11:50 P.M. At his deposition, however, plaintiff testified that the incident occurred at 1:30 A.M., which is almost two hours, as opposed to merely twenty minutes after he claims to have left his residence. Plaintiff further testified at trial that the area near the left front wheel of the subject vehicle struck him as the vehicle swerved into him, but during his deposition testified that the point of impact on the vehicle was further back near the driver’s door. Moreover, while he testified during direct that he had walked two to three steps in front of the parked vehicle before the incident occurred, on cross examination he claimed to have walked five steps. Plaintiff’s inconsistent testimony could have reasonably raised credibility issues for the jury to determine. (See, e.g., Moses v. Appliance & Elecs. City, Corp., 306 AD2d 258 [2d Dept 2003].) The jury could have reasonably attributed plaintiff’s inconsistencies to his faulty recollection or misstatement, concluding that he failed to meet his burden of establishing that the motorist negligently operated his vehicle. (See, Margiotta v. Rock & Roll Livery, Ltd., 302 AD2d 500 [2d Dept 2003].) Furthermore, plaintiff claims that this court “…committed reversable error by excluding testimony and evidence that plaintiff suffered a fracture ankle as a result of the impact” during the liability portion of the trial. To support this claim, plaintiff cites to Lind v. City of NY, 270 AD2d 315 [2d Dept 2000] and Kaplan v. New Floridian Diner, 245 AD2d 548 [2d Dept 1997], two cases which discuss unifying trials. The cases cited by plaintiff’s attorney are inapplicable here as he neither moved for a unified trial nor proffered documentary or expert evidence of his client’s alleged injuries. Failing to object to the bifurcation of a trial constitutes waiver of that issue. (See, Mikos v. Ackerman, 159 AD2d 563 [2d Dept 1990].) This exclusion of the plaintiff’s testimony of having fractured his ankle occurred when, during cross-examination, plaintiff was asked if he went home after the incident, to which plaintiff responded in the affirmative while adding that his ankle was broken. Plaintiff’s voluntary reference to alleged injuries prompted defense counsel to move for a curative charge. Plaintiff’s counsel did not object to a curative charge and one was given. At the conclusion of the curative charge, the attorneys for the parties were asked “Is that acceptable, Counsel?” and again the attorney for plaintiff remained silent and voiced no objection. In fact, the record is devoid of an objection to defendant’s request for a curative charge or the charge itself until the submission of the instant motion. Plaintiff’s failure to object to the charge during trial constitutes waiver. (See, e.g., Horton.v Smith, 51 NY2d 798 [1980]). Based on the foregoing, plaintiff failed to establish its burden that the jury could not have reached the verdict by any fair interpretation of the evidence, and his motion to set aside the verdict is denied. Dated: February 11, 2020
