Liana v. Atacil Contracting , 622 N.Y.S.2d 763 ( 1995 )

—In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Vaccaro, J.), entered November 23, 1992, which, upon a jury verdict determining that the defendants were not negligent, is in favor of the defendants and against him.

Ordered that the judgment is affirmed, with costs.

The delivery truck operated by the plaintiff was stationary when it was struck in the rear by the dump truck operated by the defendant Giocchino Licata on May 26, 1988, on 75th Street and New Utrecht Avenue in Brooklyn. Although the plaintiff maintains that his truck was legally parked flush against the curb, Licata asserts that the truck was parked at an angle, obstructing the travel lane. Licata testified at trial that the accident was caused by a sudden and unexpected brake failure of his dump truck. He further testified that the dump truck was inspected on a yearly basis, during which the brakes were tested, and that the dump truck had last been tested between eight months and one year prior to the accident. Licata also testified that the brakes had been operating perfectly until only minutes before the accident, giving him no reason to have suspected the brakes of imminent malfunction.

The plaintiff’s assertion that Licata did not offer proof of reasonable maintenance of the brakes, such as would render Licata’s excuse of brake failure insufficient as a matter of law, is without merit (cf., Normoyle v New York City Tr. Auth., 181 AD2d 498; O’Callaghan v Flitter, 112 AD2d 1030; Stanisz v Tsimis, 96 AD2d 838). Furthermore, the jury’s verdict could have been reached upon a fair interpretation of the evidence, and will not be disturbed upon appeal (see, Nicastro v Park, 113 AD2d 129).

The plaintiff’s remaining contentions are either unpreserved for appellate review or without merit. Mangano, P. J., Bracken, Altman and Goldstein, JJ., concur.