Morgan v. New York City Transit Authority

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Kings County (Bunyan, J.), entered January 16, 2004, which, upon a jury verdict, is in favor of the defendant and against them dismissing the complaint. Ordered that the judgment is affirmed, with costs. The verdict finding that the injured plaintiff did not sustain a serious injury as a result of the bus stopping short was supported by sufficient evidence in the record and was a fair interpretation of the evidence (see Cohen v Hallmark Cards, 45 NY2d 493, 498-499 [1978]; Nicastro v Park, 113 AD2d 129, 134 [1985]). The jury was free to weigh and discredit the infant plaintiffs testimony (see Vasquez v Jacobowitz, 284 AD2d 326 [2001]; White v Rubinstein, 255 AD2d 378 [1998]), and resolve the disputed issues of fact in favor of the defendant; as its finding was supported by the record, there is no reason to disturb the verdict (see Evers v Carroll, 17 AD3d 629 [2005]; Schiskie v Fernan, 277 AD2d 441 [2000]; Alterescu v Mills, 216 AD2d 345 [1995]; cf. Stanley v Lallis, 247 AD2d 462 [1998]; Fogliani v Salvato, 205 AD2d 581 [1994]). The Supreme Court properly denied the plaintiffs’ request to compel the defendant’s expert to testify at the trial, even though the expert had been subpoenaed by the plaintiffs (see CPLR 2308 [a]; Metropolitan N.Y. Coordinating Council on Jewish Poverty v FGP Bush Term., 1 AD3d 168 [2003]; People ex rel. Kraushaar Bros. & Co. v Thorpe, 296 NY 223, 224 [1947]). Ritter, J.P., Rivera, Spolzino and Covello, JJ., concur.