Pomaro v. McKeon

The Supreme Court improperly set aside the jury’s verdict on the issue of liability (see, CPLR 4404; Cohen v Hallmark Cards, 45 NY2d 493). Here, the jury "was presented with sharp issues of credibility and the accuracy of the witnesses’ testimony was for its determination” (Albero v Rogers, 143 AD2d 246; see also, Salazar v Fisher, 147 AD2d 470). The jury’s apportionment of liability in this case was based upon a fair interpretation of the evidence. Thus, it should not have been disturbed (see, Nicastro v Park, 113 AD2d 129; see also, Patti v Fenimore, 181 AD2d 869). However, the court correctly set aside the jury’s verdict with respect to damages since the award was against the weight of the evidence (see, Cohen v Hallmark Cards, supra), and "deviate[d] materially from what would be reasonable compensation” (CPLR 5501 [c]). Pizzuto, J. P., Joy, Krausman and Mc-Ginity JJ., concur.