In an action to recover damages for injury, Plaintiff appeals from a jury verdict, dated October 2, 2007, that absolved Defendant of all liability. Plaintiff moves to set aside the jury verdict and direct for a judgment notwithstanding the verdict or alternatively, for a new trial. Defendant opposes the motion.

The issue before the court is whether a jury may simply choose not to believe prima facie evidence of negligence in the absence of any non-negligence evidence from the defendant.

On January 7, 2003, Plaintiff Salter was operating his bicycle on the eastbound lane of Empire Boulevard, a two-way roadway with east and westbound traffic lanes. After Plaintiff passed the intersection of Rogers Avenue and Empire Boulevard, he observed a van double parked in the right hand lane of Empire Boulevard. He approached the van and once he determined it would not move, he continued eastbound. Salter was then hit from behind by the 2004 Lincoln vehicle owned by Defendant, St. Preux. Police Officer Marketos responded to the accident and spoke with both Mr. Salter and St. Preux. At that time, he completed a Police Accident Report form.

Plaintiff presented evidence that satisfied the prima facie burden for negligence. Plaintiff showed that he was riding his bicycle on Empire Boulevard, that Defendant was driving his vehicle on Empire Boulevard, that the weather was clear and dry, and that Defendant's car had collided into the rear of Salter's bicycle.

Defendant did not offer evidence rebutting Salter's version of events. However, upon cross-examination, Defendant impeached Plaintiff's credibility, highlighting several inconsistencies from his deposition, direct examination, and cross-examination court testimony. On direct examination, Salter claimed that the side view mirror hit his body, but on cross-examination, he claimed that the vehicle made contact with his bicycle first. Additionally, Salter testified that the vehicle came into contact with his bicycle. However in his deposition testimony, he stated that the bicycle was never hit and the vehicle only smashed into his back. On direct examination, Salter also testified that he did not stop when approaching the double parked van. However, under cross-examination, he testified that he did stop 10-feet away from the van.

The power of the court to set aside a jury verdict and grant either a directed verdict or a new trial is codified in CPLR §4404(a). [*2]

CPLR §4404(a) states:

After a trial of a cause of action or issue triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence, in the interest of justice or where the jury cannot agree after being kept together for as long as is deemed reasonable by the court.

The motion for a judgment notwithstanding the verdict is a higher standard than granting a motion for a new trial. A court must find that the jury decision is unsupported by sufficient evidence, thus requiring judgment for the adversary (Soto v. New York City Transit Authority, 6 NY3d 487, 492, 813 NYS2d 701 (2006). A court is charged with deciding whether there is any valid line of reasoning and permissible inferences which could possibly lead rational people to the conclusion reached by the jury on the basis of the evidence presented at trial (id.). If the verdict is not irrational, the court may not conclude that the verdict as a matter of law is not supported by the evidence. Id.

Moreover, a trial court has the discretionary power to set aside a verdict and grant a new trial (Kaplan v. Miranda, 37 AD3d 762, 830 NYS2d 755 (2nd Dep't. 2007). A Judge's background and professional acumen determines when granting a motion for a new trial is the correct choice. Pire v. Otero, 123 AD2d 611, 506 NYS2d 772 (2nd Dep't. 1986). A Judge may not set aside a verdict, merely because he disagrees with it (Nicastro v. Park, 113 AD2d 129, 133; 495 NYS2d 184 [2nd Dep't. 1985]). To do so, would be to usurp the fact-finding role of the jury. Id. The Court should not set aside the verdict unless it could not be reached upon any fair interpretation of the evidence, with consideration given to the credibility of the witnesses and the drawing of reasonable inferences therefrom (Wertzberger v. City of New York, 254 AD2d 352, 680 NYS2d 260 [2nd Dep't. 1998]).

Plaintiff contends that the evidence presented at trial was unrebutted. Therefore, the jury had neither the sufficient evidence to make its judgment, nor could the jury have arrived at a verdict of no liability for the defendant by any fair interpretation of the evidence.

Defendant maintains that the jury did not find Plaintiff to be a credible witness and it is within the jury's discretion to find that Plaintiff did not carry his burden of proof. Defendant points to several inconsistencies between trial testimony and deposition testimony to account for the jury's verdict.

Defendant relies on Margiotta v. Rock & Roll Livery, Ltd. and Moses v. Applian ce & Electronics City Corp, et al. 302 AD2d 500, 755 NYS2d 286 (2nd Dep't. 1985); 306 AD2d 258, 760 NYS2d 364 (2nd Dep't. 2003). In both cases the plaintiff, similar to the instant case, provided the sole testimony as to the events surrounding the accident that was contradicted by police testimony. In addition, the plaintiffs in both cases were engaged in risky behavior. Id. In Margiotta, the plaintiff was riding his bicycle at 4 am without lights, in the middle of the road. The jury found in favor of the defendant. 302 AD2d 500, 755 NYS2d 286 (2nd Dep't. 1985). In Moses, the Plaintiff was riding his bicycle against the flow of vehicular traffic, at 10 p.m. without a light or horn. 306 AD2d 258, 760 NYS2d 364 (2nd Dep't. 2003). The Supreme Court in both cases granted motion for a new trial. 302 AD2d 500, 755 NYS2d 286 (2nd Dep't. 1985); 306 AD2d 258, 760 NYS2d 364 (2nd Dep't. 2003). The Appellate Court reversed, reasoning that based on the testimony of the police officer and inconsistencies in the plaintiff's testimony raised credibility issues for the jury to resolve. Id. On the fair interpretation of the evidence, the jury's [*3]verdict was a reasonable one. Id.

However, the instant case is distinguished from the cases cited above. Here, there is no witness testimony that has contradicted the plaintiff's testimony. Police Officer Marketos merely confirmed that both parties were at the scene of the accident. Additionally, no evidence was introduced that Plaintiff encouraged the accident. Instead Plaintiff testified that he zealously followed safety precautions. Additionally, the weather was clear, sunny and dry. Defendant does not rebut any of the evidence presented. Instead, Defendant points out that Plaintiff was mistaken as to whether the vehicle hit the bicycle and his back rather than only his back and that Plaintiff stopped 2 times for safety reasons rather than preceding without stopping.

Inconsistency in testimony goes to witness credibility and presents an issue of fact for the jury to decide. In consideration of this principle, the instant case does not permit for a judgment notwithstanding the verdict as the jury had facts at its disposal to decide. However, Plaintiff, while observing safe driving, was struck by Defendant's vehicle on a clear day. A finding of zero liability cannot be supported.

In view of Plaintiff's testimony and defendant's statutory duty to take care in changing lanes (VTL §1128) and to react to a bicyclist on the road (VTL §1128), the Court does not agree with the jury's determination and holds that the verdict finding that there was no negligence on Defendant's part could not be reached upon any fair interpretation of the evidence. Motion setting aside the jury verdict for a new trial is granted.

Counsel for both parties are ordered to contact the clerk of the court to schedule a conference and a new trial.

The foregoing constitutes the decision and order of the court.

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J.S.C.