Chin v. Kaplan

—Judgment unanimously reversed on the law without costs, order vacated, motion granted, verdict set aside and new trial granted on proximate cause and damages only. Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by Peggy Chin (plaintiff) in a motor vehicle accident. Supreme Court directed a verdict on the issues of serious injury and defendants’ negligence, and the jury returned a verdict of no cause of action based on its finding that defendants’ negligence was not a proximate cause of plaintiffs injuries. Plaintiffs appeal from the order denying their motion to set aside the verdict as against the weight of the evidence. That order was subsumed in the judgment (see, CPLR 5501 [a] [1]). In the exercise of our discretion, we treat the appeal as taken from the judgment (see, CPLR 5520 [c]). In view of the directed verdict on the issues of negligence and serious injury, and the uncontroverted testimony of plaintiffs’ medical expert, we conclude that “the preponderance of the evidence in favor of [plaintiffs] is so great that the verdict could not have been reached upon any fair interpretation of the evidence” (Da nnick v County of Onondaga, 191 AD2d 963, 964 ; see also, Hackett v Driver, 278 AD2d 914 ). Consequently, we reverse the judgment, vacate the order, grant plaintiffs’ motion, set aside the verdict and grant a new trial on proximate cause and damages only. (Appeal from Judgment of Supreme Court, Onondaga County, Nicholson, J. — Set Aside Verdict.) Present — Pigott, Jr., P. J., Green, Hayes, Wisner and Lawton, JJ. [As amended by unpublished order entered May 2, 2001.]