Tout v Zsiros
2008 NY Slip Op 02392 [49 AD3d 1296]
March 14, 2008
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 14, 2008

Jill M. Tout et al., Appellants, v Michael J. Zsiros et al., Respondents.

[*1] Law Office of J. Michael Hayes, Buffalo (J. Michael Hayes of counsel), for plaintiffs-appellants.

Kenney Shelton Liptak Nowak LLP, Buffalo (Nelson E. Schule, Jr., of counsel), for defendant-respondent Michael J. Zsiros.

Goldberg Segalla LLP, Buffalo (John P. Freedenberg of counsel), for defendant-respondent Central Originating Lease Trust.

Appeal from a judgment of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered April 25, 2007 in a personal injury action. The judgment dismissed the amended complaint upon a jury verdict.

It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by Jill M. Tout (plaintiff) when the vehicle she was driving struck a vehicle driven by defendant Michael J. Zsiros and owned by defendant Central Originating Lease Trust. Supreme Court properly denied plaintiffs' motion pursuant to CPLR 4404 (a) seeking to set aside the jury verdict in favor of defendants as against the weight of the evidence. "A verdict rendered in favor of a defendant may be successfully challenged as against the weight of the evidence only when the evidence so preponderated in favor of the plaintiff that it could not have been reached on any fair interpretation of the evidence" (Jaquay v Avery, 244 AD2d 730, 730-731 [1997]; see Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]; Garrison v Geyer, 19 AD3d 1136 [2005]). Plaintiffs concede that, based on the conflicting medical evidence concerning plaintiff's neck and back injuries, the jury's verdict finding that plaintiff's injuries were not caused by the accident was based on a fair interpretation of the evidence (see Cummings v Jiayan Gu, 42 AD3d 920, 922-923 [2007]; Wilson v Hallen Constr. Corp., 40 AD3d 986, 987-988 [2007]; Fallon v Esposito, 35 AD3d 1067, 1068-1069 [2006]). They contend, however, that a new trial is required because that part of the verdict may have been based upon an erroneous "low impact" theory premised upon photographs depicting little or no damage to the parties' vehicles, which were admitted in evidence over plaintiffs' objection. We reject that contention, inasmuch as the court did not charge that alternative theory of [*2]causation (cf. Fein v Board of Educ. of City of N.Y., 305 NY 611, 612 [1953]; Purnell v New York City Hous. Auth., 262 AD2d 545 [1999]).

Finally, we reject plaintiffs' contention that the court erred in admitting the photographs of the parties' vehicles in evidence. Photographs showing no damage to a plaintiff's vehicle are admissible to impeach a plaintiff's credibility on the issue whether the accident caused the alleged injuries (see Torres v Esaian, 5 AD3d 670, 671 [2004]; see also Anderson v Dainack, 39 AD3d 1065, 1066 [2007]). Present—Scudder, P.J., Centra, Lunn, Fahey and Green, JJ.