Opinion
April 7, 1978
Appeal from the Monroe Supreme Court.
Present — Moule, J.P., Cardamone, Simons, Dillon and Hancock, Jr., JJ.
Judgment unanimously affirmed, without costs. Memorandum: The conflicting evidence as to whether the truck had lights operating at the time of the accident presented a question of credibility to be resolved by the jury. A jury verdict in favor of a defendant should not be set aside as against the weight of the credible evidence unless it plainly appears that the evidence so preponderates in favor of the plaintiff that the finding could not have been reached by any fair interpretation of the evidence (Olsen v Chase Manhattan Bank, 10 A.D.2d 539, 544, affd 9 N.Y.2d 829; Abdoo v Wentworth, 49 A.D.2d 1002; Lee v Lesniak, 40 A.D.2d 756). It cannot be said that the jury's dismissal of the complaints as against Arthur Cammarono and Lewis General Tires, Inc., could not have been reached by any fair interpretation of the evidence. Further, we conclude that the claimed prejudicial reference made during a colloquy between the attorneys was not prejudicial to appellants inasmuch as there is no clear showing that the reference was to Cammarono and not Joseph Alfieri; additionally, at trial appellant's counsel failed to make a proper motion for a mistrial.