Opinion
January 9, 1992
Appeal from the Supreme Court, New York County (Ira Gammerman, J.).
This appeal brings for review the third and fourth jury trials in this protracted negligence action brought by a seaman to recover damages for a broken wrist sustained in 1977. (See, Guarnier v. American Dredging Co., 145 A.D.2d 341; 151 A.D.2d 1056; 172 A.D.2d 220.)
The Record does not support plaintiff's claim that the evidence is so overwhelming or preponderates so much in his favor as to warrant this Court to exercise its discretion to substitute its judgment for that of the trier of fact which is in the best position to assess the evidence presented (Yalkut v. City of New York, 162 A.D.2d 185). Conflicting evidence was adduced at trial concerning whether the stuck shackle on board the barge was unfit or defective, and as to the difference in height between the barge and dredge. These factual matters are best left for resolution by the jury and no basis exists to disturb its findings.
Concur — Rosenberger, J.P., Wallach, Ross and Smith, JJ.