| Martin v Clark |
| 2008 NY Slip Op 00015 [47 AD3d 981] |
| January 3, 2008 |
| Appellate Division, Third Department |
| Dina Martin, Appellant, v Kimberly Clark et al.,Respondents. |
—[*1] Hanson & Fishbein, Albany (Paul G. Hanson of counsel), for respondents.
Peters, J. Appeal from a judgment of the Supreme Court (Williams, J.), entered July 27, 2006in Saratoga County, upon a verdict rendered in favor of defendants.
Plaintiff was stopped in the northbound lane to make a left-hand turn into her driveway onEdie Road in the City of Saratoga Springs, Saratoga County, when she observed a vehicle,operated by defendant Craig Coon, approach from the elevated southbound lane. According toplaintiff, Coon's vehicle was proceeding at a fast rate of speed as she observed it cross over thedividing lane, straddling both lanes. Concerned for her safety and not seeing the head of thedriver, she made a sudden turn to the left in an attempt to avoid a collision. At that moment,Coon suddenly returned to his lane and collided with her vehicle.
Plaintiff commenced this personal injury action, alleging Coon's negligent operation of thevehicle, which was owned by defendant Kimberly Clark. A jury concluded that while Coon hadbeen negligent, such negligence was not a substantial factor in causing the accident. SupremeCourt denied plaintiff's motion to vacate the verdict as against the weight of the evidence and thisappeal ensued.
We reject plaintiff's contention that the jury's verdict was against the weight of the evidencesince we cannot conclude that the "evidence so preponderated in favor of the plaintiff that theverdict could not have been reached on any fair interpretation of the evidence" (Acovangelo vBrundage, 271 AD2d 885, 886-887 [2000]; see Lolik v Big V Supermarkets, 86NY2d 744, 746 [1995]). Recognizing that this is a discretionary determination which triggers abalancing of numerous factors, "[t]he ultimate test is whether any viable evidence exists tosupport the verdict" (Ruso v Osowiecky, 256 AD2d 839, 840 [1998]).
Here, Coon testified that he and Clark were driving their three children from one birthdayparty to another and, as he proceeded south on Edie Road, he heard a noise from the back seatwhich he suspected was caused by one of the children throwing an object towards the front of thevehicle. Coon stated that after he turned onto Edie Road, he checked the noise in the back of thecar and continued driving until the accident occurred. Once presented with the police reportindicating that "[p]rior to collision [Coon] turned around in seat to attend to child," Coonclarified that, although he did tend to his child in the rear of the vehicle when he first turned ontoEdie Road, his attention was on the road in front of him immediately prior to the accident. Hewholly denied ever having crossed over the double yellow divider lines. Finally, he contendedthat from the time that plaintiff first turned left into his lane of travel, he had no time to avoid theaccident. Plaintiff reiterated her version of the accident, claiming that just prior to the collision,Coon's head was not visible until the "instant before he hit me." The police report indicates thatplaintiff stated that she did not see defendants' vehicle.
Recognizing that the evidence must be viewed in a light most favorable to the nonmovingparty (see Acovangelo v Brundage, 271 AD2d at 887) and that the resolution ofconflicting issues is a determination properly left to the jury (see Brown v Dragoon, 11 AD3d 834, 836 [2004], lv denied4 NY3d 710 [2005]; Acovangelo v Brundage, 271 AD2d at 887), we conclude that thejury could have reasonably found that even though Coon was at fault for tending to his childrenin the back seat while driving, his negligence was not a substantial factor in causing the accident(see Schaefer v Guddemi, 182 AD2d 808, 809 [1992]). Failing to conclude that "theissues are 'so inextricably interwoven as to make it logically impossible to find negligencewithout also finding proximate cause' " (id., quoting Rubin v Pecoraro, 141AD2d 525, 527 [1988]; accord Ruso v Osowiecky, 256 AD2d at 841), we affirm.
In so finding, we note no error in the jury's consideration of conflicting trial testimonyconcerning the disposition of a traffic ticket given to plaintiff after the accident since the jury wasinstructed that its use was limited solely to impeachment.[FN*]As Supreme Court gave limiting instructions, without objection, and, when asked to clarify thatlimitation, reiterated its purpose, we do not find that its limited use was repugnant to Vehicle andTraffic Law § 155.
Cardona, P.J., Spain, Carpinello and Lahtinen, JJ., concur. Ordered that the judgment isaffirmed, with costs.
Footnote *: Plaintiff contended that theticket was retracted, whereas the evidence established that she paid a small fine and pleadedguilty to a lesser charge.