`NYSCEF DOC. NO. 67
`RECEIVED NYSCEF: 09/27/2017
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`INDEX NO. 52508/2014
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`INDEX “0' 52508/2014
`FILED: WESTCHESTER COUNTY CLERK 09m2017 03:07 PM
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`NYSCEF DOC. NO. 67
`RnCnIVnD NYSCEF: 09/27/2017
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`SUPREME COURT OF THE STATE OF NEW YORK
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`COUNTY OF WESTCHESTER
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`_____________________________________________________________________ X
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`BARBARA MURPHY,
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`Index No.: 52508/2014E
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`Plaintiff,
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`-against-
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`NOTICE OF ENTRY
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`CRAIG FORD,
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`Defendant.
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`_____________________________________________________________________X
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`PLEASE TAKE NOTICE, that the within is a true copy of a Decision and Order entered
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`in the Office of the Clerk of the within named court on September 26, 2017.
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`Dated: White Plains, New York
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`September 27, 2017
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`Yours, etc.,
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`COLLINS, FITZPATRICK & SCHOENE, LLP
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`By: A A %"
`KEVIN P. FITZPATRICK, ESQ.
`Attorneys for Defendant
`34 South Broadway, Suite 407
`White Plains, New York 10601
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`(914) 437-8020
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`TO:
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`SULLIVAN PAPAIN BLOCK
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`McGRATH & CANNAVO PC.
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`Attorneys for Plaintiff
`120 Broadway, 18th Floor
`New York, New York 10271
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`1 of 6
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`FILED: WESTCHESTER COUNTY CLERK 09/27/2017 03:07 PM
`NYSCEF DOC. NO. 67
`RECEIVED NYSCEF: 09/27/2017
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`INDEX NO. 52508/2014
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`FILED: WESTCHESTER COUNTY CLERK 09m2017 03:07 PM
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`NYSCEF DOC. NO. 66
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`To commence the statutory
`time for appeals as of right
`(CPLR 5513[a]), you are
`advised to serve a copy
`of this order, with notice
`of entry, upon all parties.
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`RECEIVED NYSCEF: 09/26/2017
`s .,,_ \
`U;
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`V
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF WESTCHESTER
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`PRESENT: HON. SAM D. WALKER, J.S.C.
`----------------——————————-—---------—-———_____--_-______----_______'__________ x
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`BARBARA MURPHY,_
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`—against-
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`CRAIG FORD _
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`y
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`_
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`‘
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`Plaintiff,
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`_
`, DECISION '& ORDER
`- Index No: 52508/2014
`Seq # 2
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`-
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`Defendant.
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`._._.__.______.__._____ ________________- _________X
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`The following papers were read on the plaintiff’s motion to vacate the jury verdict
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`pursuant to CPLR 4404:
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`Notice of Motion/Affirmation in Support/Exhibits A—K
`Transcript of Proceedings
`AffirmationIn Opposition/Exhibits A—F
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`Memorandum of Law in Opposition
`Reply Affirmation/Exhibits L—N .
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`‘
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`j
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`1—13
`14
`15-21
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`23—26
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`FACTUAL AND PROCEDURAL BACKGROUND
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`The plaintiff, Barbara Murphy (the “plaintiff"l"Murphy")commenced this action to
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`recover damages arising from a mOtor vehicle accident, which occurred on January 24,
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`' 2014 with Defendant, Craig Ford (the “defendant”/“Ford") and resulting in her sustaining
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`personal injuries. On March 9, 2017, the case came on before this Court for a trial on
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`damages1 and on March 20, 2017, the jury rendered a verdict awarding the plaintiff
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`$250,000 for her past pain and suffering and $111,500 for one year of future pain and
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`‘ The parties agreed on the record, prior to the commencement of the trial on damages, that Ford was
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`FILED: WESTCHESTER COUNTY CLERK 09/27/2017 03:07 PM
`NYSCEF DOC. NO. 67
`RECEIVED NYSCEF: 09/27/2017
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`INDEX NO. 52508/2014
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`FILED: WESTCHESTER COUNTY CLERK 09m2017 03:07 PM
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`NYSCEF Doc. N0. 66'
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`RECEIVED NYSCEF: 09/26/2017
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`suffering.
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`The plaintiff now files the instant motion pursuant to 'CPLR .4404 seeking to set
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`aside the damages verdict and order a new trial or in the alternative for an order fixing ..
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`damages in a monetary amount which does not deviate materially from what
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`is
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`considered reasonable compensation for the plaintiff‘s injuries. The plaintiff argues that
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`the award for past pain and suffering and future pain and suffering deviated materially
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`from reasonable compensation and was profoundly inadequate, since there was no
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`testimony or evidence disputing the contention that Murphy’s injuries were serious and _
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`severe.
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`In support of her motion, the plaintiff relies upon, among other things, photographs
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`of her vehicle, trial exhibits, a transcript of the proceedings and an attorney's affirmation.
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`The defendant opposes the motion and in support of his opposition, relies -upon, among
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`other things, the transcript of the trial and Murphy’s testimony, portions 'of Murphy's
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`examination before trial (“EBT”), MRI reports and other medical note and- pharmacy
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`records, a memorandum of law and an attorney’s affirmation.
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`The plaintiff, by her attorney, argues thatprior to the trial, both parties agreed that
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`the total damages would be capped at $1,250,000, the reported limits of the defendant’s
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`insurance pOlicy. The plaintiff contends that the defendant’s attorney conceded that she
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`would have permanent loss of range of motion and her expertstated that her pain is _
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`permanent and will worsen. The plaintiff asserts that all agreed that her employment, was
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`substantially curtailed.'The plaintiff contends that the meager award of $250,000 for the
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`catastrophic injuries and unremitting pain she suffered for more than three years was
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`wholly insufficient. She further argues that the $111,5000 for one year’and only one year,
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`FILED: WESTCHESTER COUNTY CLERK 09/27/2017 03:07 PM
`NYSCEF DOC. NO. 67
`RECEIVED NYSCEF: 09/27/2017
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`INDEX NO. 52508/2014
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`FILED: WESTCHESTER COUNTY CLERK 09m2017 03:07 PM
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`NYSCEF Doc. _NO.. 66
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`-RECEIVED NYSCEF: 09/26/2017
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`for future pain and suffering may be adequate for one year, but the jury determination that
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`she would have no more pain and suffering from her permanent injurytfor the rest of her
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`life is incomprehensible, is totally unsupported by the evidence and without any basis in
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`fact or reason.
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`'
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`Inlopposition, the defendant argues that the amount of damages is a'question of
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`_
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`fact for the jury, that comparable cases demonstrate that the jury's award is reasonable.
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`In reply. the plaintiff refutes the defendant’s contentions made in his opposition.
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`- DISCUSSION
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`CPLR 4404(a) states, in relevant part; that:
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`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.
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`'“The amount of damages to be awarded for personal injuries is primarily a question
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`' of fact for the jury"‘(see Kihl v Pfeffer, 47 AD3d 154, 160 [2d Dept 2007]). ‘Only when an
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`award “deviates materially from what would be reasonable compensation" is a new trial
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`on damages granted’ (Id.). The standard for determination is whether a verdict could not
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`have been reached on any ‘fair interpretation .of
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`the evidence." (Lolik v Big V
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`Supermarkets, Inc.; 655 NE2d 163, 165 [N.Y. 1995]). _In other words, "[a] verdict should
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`be set. aside as against the weight of the evidenCe only where it seems palpably wrong .
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`and it can be plainly seen that the preponderance is sogreat that the jury could not have
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`reached their conclusion upon any fair interpretation of the evidence" (Cornier v Spagna,
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`FILED: WESTCHESTER COUNTY CLERK 09/27/2017 03:07 PM
`NYSCEF DOC. NO. 67
`RECEIVED NYSCEF: 09/27/2017
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`INDEX NO. 52508/2014
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`INDEX NO' 52508/2014
`FILED: WESTCHiESTER COUNTY CLERK 09m2017 03:07 PM
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`NYSCEF DOC. NO. 66
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`2 RECEIVED N¥SCEF: 09/26/2017
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`101 AD2d 141,149 [1st Dept1984] citing Kimberly—Clark Corp vPower Auth 35 AD2d
`330, 335 [4th Dept 1970]).There is no precise mathematical formula for assessing the
`adequacy of damages so the “reasonableness" of compensation is determined by
`examining the relevant precedent of comparable cases and making factual comparisons
`(Kayes, 104 AD3d at 741; see also Don/on- v City of New York, 284_AD2d 13, .14-15 [1st
`Dept 2001])
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`Upon reviewing the facts and DapplIcable case law itIs clear that the defendant has
`not met the burden required for this Court toset‘aside the juryverdict. The plaintiff was
`injured in the-car accident on January 24, 2014 and Was hospitalized until February 4,
`2014 and then transferred to a rehabilitation center until February 19, 2014. The plaintiff
`asserts that she sustained a burst fracture of the first lumbar vertebra [with retropulsion of
`fracture fragmentsinto, spinal canal, displaced fracture of second cervical vertebra,
`fracture of the twelfth thoracic vertebra, and a right vertebral artery dissection. She had
`to undergo spinal surgery to fuse her vertebra and discs, with the insertion of rods and
`screws-and'bone grafting. The plaintiff also contends that she has COntinuing pain
`requiring pain medication, that'her health ,andquality of life have declined, that she has
`been declared 100% disabled and only works a maximum of 20 hours a week.
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`However, there was also testimony that Murphy began working-and driving four
`months subsequent to the'accident and hastraveled tojvarious places since the accident.
`Further, the documentation showsthat the non-displaced fracture of the .T12'spinous
`process has healed and two months after the accidentthe'x—rays showed no sign of the.
`slightly displaced C21fracture. The defendant'als‘o had an expert, who testified as to the
`. plaintiff’s injuries and effect of those-injuries‘on the plaintiff and the-jury is entitled to
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`FILED: WESTCHESTER COUNTY CLERK 09/27/2017 03:07 PM
`NYSCEF DOC. NO. 67
`RECEIVED NYSCEF: 09/27/2017
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`INDEX NO. 52508/2014
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`FILED: WESTCHESTER COUNTY CLERK 09m2017 03:07 PM
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`INDEX NO' 52508/2014
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`NYSCEF DOC. NO. 67
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`RECEIETBEWW.E 52%522623117
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`believe that expert's testimony.
`Further, the plaintiffhad a prior injury in 2003 and was still suffering with symptoms
`from that injury at the time of the 2014 motor vehicle accident. In October 2013, prior to
`the accident. she c0mplained of neck and back pain to her physician and had to be'
`prescribed with 240 pain pills, but then that same physician. claimed that at the time of the
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`accident in February 2014; Murphy did not have a significant ongoing neck and back
`problem prior to. the accident. The plaintiff also failed to call that physician as a witness at
`the trial. Additionally. there werevarious discrepancies with the plaintiff's testimony and
`the evidence presented. Juries are imbued with the power to review the facts as
`presented in the case. A jury may then render a verdict for the amount that should be
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`awarded. Based on this inference the rationale behind the jury's verdict is reasonable
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`(see, Liounis v New York City Transit Authority, 938 NYSZd 176 [2&1 Dept 2012];
`Handwerker v Dominicle. Cervi, Ind, 869 NYSZd 201 [2d Dept 2008]).
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`The plaintiff has failed to convince this Court that the jury's verdict was against the
`weight of the evidence and that the verdict. couldlnot have been reached by any fair
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`L
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`interpretation of the evidence and should be set aside. Therefore, the plaintiff's motion to
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`set aside the jury's verdict pursuant to CPLR 4404, is hereby DENIED.
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`The foregoing constitutes the Opinion, Decision and Order of the Court.
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`Dated: White Plains,.New York .
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`September 2? 2017
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`ON. SAM D. WALKER, J.S.C.
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