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DILRAJ BATCHU et al., Appellants, v. 5817 FOOD CORP., Respondent.

Ordered that the judgment is affirmed, with costs.

The plaintiffs' contention that the jury verdict on the issue of damages was against the weight of the evidence, inconsistent, and inadequate are without merit. "The amount of damages awarded for personal injuries is primarily a question of fact for the jury" ( Vaval v NYRAC, Inc., 31 AD3d 438, 438). "Moreover, issues regarding credibility of witnesses and accuracy of testimony are for a jury to determine, and its verdict should not be set aside if it could have been reached by any fair interpretation of the evidence" ( id., citing Policastro v Savarese, 171 AD2d 849), "especially where conflicting [evidence] is adduced at trial" ( Vaval v NYRAC, Inc., 31 AD3d at 438, citing Maldonado v WABC Towing Corp., 121 AD2d 517). A new trial on damages will only be granted where the award "deviates materially from what would be reasonable compensation" (CPLR 5501 [c]; Kravitz v City of New York, 300 AD2d 362, 363). Since conflicting evidence was presented at trial, the jury reasonably could have concluded that the majority of the plaintiff Dilraj Batchu's injuries resulted from pre-existing conditions with regard to his back and sexual dysfunction ( see Burgos v Lovell Realty, 229 AD2d 558). Thus, "it cannot be said that the damages award deviated materially from what would be reasonable compensation" ( Ballas v Occupational Sports Medicine of Brookhaven, P.C., 46 AD3d 498, 498; see Vaval v NYRAC, Inc., 31 AD3d at 438).

The plaintiffs' request for a missing witness charge with respect to Dr. Burton Diamond was properly denied since his testimony would merely have been cumulative ( see Levande v Dines, 153 AD2d 671; Getlin v St. Vincent's Hosp. Med. Ctr. of N.Y., 117 AD2d 707, 708-709).

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BATCHU v. 5817 FOOD CORP
(Nov 5, 2008)