Opinion
April 18, 1996
Appeal from the Supreme Court, New York County (Robert J. Lippmann, J.).
The three actions consolidated herein arose as the result of a vehicle operated by defendant Young on behalf of defendant Gallery striking plaintiff Jackson, the Aguasvivas plaintiffs, and the Amoah plaintiffs on 40th Street near 5th Avenue in midtown Manhattan. Defendant Verilen was the owner of a property undergoing construction near 5th Avenue and 40th Street and defendant Schal was manager of that construction site.
The trial court erred in setting aside the first jury verdict which exonerated Schal and Verilen in the Aguasvivas action. The standard for setting aside a verdict as unsupported by sufficient evidence is that there is "`no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented'". ( Curiale v. Peat, Marwick, Mitchell Co., 214 A.D.2d 16, 24.) Moreover, the beneficiaries of the verdict must be given the benefit of every favorable inference ( Curiale v. Peat, Marwick, Mitchell Co., supra, at 18; Callahan v. Carlin Constr. Corp., 223 A.D.2d 459).
Applying these principles and giving due regard to the jury's authority to resolve conflicts in expert testimony ( Gamiel v Univ. Hosp., 216 A.D.2d 80), it was not irrational for the jury to accept the evidence offered that the signs posted were sufficient; to discount the assertion that the failure to use "Jersey" barriers was an act of negligence; or to discount, as an act of negligence, the failure to construct the 5-foot pedestrian walkway.
Similarly, it was error to direct a verdict against Young and Gallery with regard to the Aguasvivas and Amoah actions. The standard for directing a verdict is essentially the same as that cited above for setting aside a verdict as unsupported by sufficient evidence ( Curiale v. Peat, Marwick, Mitchell Co., supra, at 24). A driver may be exonerated where there is a non-negligent explanation, e.g., the unexpected brake failure asserted here ( LaSalle v. J T Sand Gravel, 177 A.D.2d 265, lv denied 79 N.Y.2d 755), for his conduct even where the conduct raises an inference of negligence, e.g., the rear end collision here with the Amoah vehicle ( see, DeAngelis v. Kirschner, 171 A.D.2d 593; Galante v. BMW Fin. Servs., 223 A.D.2d 421). Despite Young's conflicting testimony at his deposition and trial as to whether his foot was on the brake, he steadfastly maintained that the acceleration was sudden and inexplicable. The resolution of such an inconsistency was a question for the jury.
In plaintiff Jackson's action, however, there was no triable issue for the jury. Young's explanation of unexpected brake failure addressed the events occurring after he struck Jackson, not prior thereto. Therefore, it was appropriate to direct a verdict against Young and Gallery in the Jackson action.
Concur — Wallach, J.P., Ross, Nardelli, Williams and Mazzarelli, JJ.