Kellyman v. Poch

Kellyman v Poch (2022 NY Slip Op 51242(U)) [*1] Kellyman v Poch 2022 NY Slip Op 51242(U) [77 Misc 3d 132(A)] Decided on November 18, 2022 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on November 18, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ 2021-800 K C Lilleth Kellyman, Appellant, against Rossia Poch and Benjamin Poch, Respondents, and Bernice Flickstein, Defendant. Georgaklis & Mallas, PLLC (Leslie D. Knight, Kostantinos Mallas and Greg Lombardi of counsel), for appellant. Sobel Pevzner, LLC (Aaron C. Gross of counsel), for respondents. James G. Bilello & Associates, (no brief filed) for defendant. Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered November 1, 2017. The order granted a motion by defendants Rossia Poch and Benjamin Poch, pursuant to CPLR 4404 (a), to set aside a jury verdict against them on the issue of liability and dismiss so much of the complaint as was asserted against them. ORDERED that the order is affirmed, without costs. Plaintiff commenced this action in Supreme Court, Kings County, to recover damages for injuries she sustained in a motor vehicle accident. The matter was subsequently transferred to the Civil Court pursuant to CPLR 325 (d). Insofar as relevant to this appeal, after the liability portion of the trial, the jury found defendants Rossia Poch and Benjamin Poch (the Poch defendants), the owner and operator, respectively, of the alleged offending vehicle, were responsible for the accident. Thereafter, the Poch defendants moved, pursuant to CPLR 4404 (a), to set aside the jury verdict finding them liable and for judgment as a matter of law, or, alternatively, for a new trial. The Civil Court granted the motion and dismissed so much of the [*2]complaint as was asserted against the Poch defendants. Plaintiff appeals. A motion for judgment as a matter of law pursuant to CPLR 4404 (a) may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusions reached by the jury upon the evidence presented at trial (see Lingechetty v Shukla, 114 AD3d 832 [2014]; McDonald v Kohanfars, 106 AD3d 1058 [2013]; Michael H. Spector, AIA, P.C. v Billy Smith's Sports Ctr., Inc., 95 AD3d 967 [2012]; Tapia v Dattco, Inc., 32 AD3d 842 [2006]). "When presented with such a motion, the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant" (Bacon v Bostany, 104 AD3d 625, 627 [2013] [internal quotation marks omitted]; see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]). Viewing the evidence in the light most favorable to plaintiff, there is no rational process by which the jury could have found in her favor on the issue of whether the Poch defendants were liable for the accident. Plaintiff testified that the offending vehicle was a white or cream colored Jeep and the only evidence at trial with respect to the vehicle owned by defendant Rossia Poch or driven by defendant Benjamin Poch was that it was a blue compact car. Moreover, there was no evidence at trial establishing that plaintiff recovered the license plate number of the offending vehicle and that it matched a vehicle owned by Rossia Poch. In addition, there was no evidence at trial identifying defendant Benjamin Poch as the driver of the offending vehicle. Thus, the Civil Court properly granted the Poch defendants' motion. Accordingly, the order is affirmed. ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: November 18, 2022