| Askin v City of New York |
| 2008 NY Slip Op 09283 [56 AD3d 394] |
| November 25, 2008 |
| Appellate Division, First Department |
| Judith Askin et al., Respondents, v City of New York et al.,Defendants, and New York City Health and Hospitals Corporation,Appellant. |
—[*1] Alexander J. Wulwick, New York, for respondents.
Judgment, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered June 26,2006, upon a jury verdict in plaintiffs' favor, to the extent it apportioned liability 60% todefendant New York City Health and Hospitals Corporation (HHC) and 40% to defendantChristopher O'Brien, and bringing up for review an order, same court and Justice, entered June 8,2005, which, inter alia, denied HHC's motion for judgment notwithstanding the verdict or for anew trial on liability and apportionment thereof, unanimously modified, on the facts, to vacatethe apportionment of liability and to direct a new trial solely on that issue, and otherwiseaffirmed, without costs, unless O'Brien, within 30 days after service of a copy of this order,stipulates to an apportionment of liability of 30% to HHC and 70% to himself, and to entry of anamended judgment in accordance therewith.
The decedent was killed when a car driven by O'Brien collided with the rear corner of adisabled ambulance owned by HHC. There was sufficient evidence to support the jury'sconclusions that HHC was negligent in failing to expeditiously remove the disabled ambulancefrom the traffic lane and in failing to adequately warn other vehicles of its presence and thatHHC's negligence was a proximate cause of the accident (see Cohen v Hallmark Cards,45 NY2d 493, 499 [1978]).
The trial court correctly charged the jury on provisions of the Vehicle and Traffic Law andthe Traffic Rules and Regulations of the City of New York governing the parking, standing andstopping of vehicles (see Vehicle and Traffic Law § 1200 [a], [d]; §§1201, 1202 [a] [1] [f]; 34 RCNY 4-08 [a] [1], [4], [8]). Contrary to HHC's contention, theseprovisions were relevant to the issues in this case.
The court improperly denied HHC's request for a charge that a rear-end collision with astationary vehicle creates a presumption of negligence on the part of the driver of the movingvehicle (see generally Russo v Sabella Bus Co., 275 AD2d 660 [2000]). However, in ourview [*2]the error was harmless.
The court improperly permitted plaintiff's expert to render an opinion whether the placementof the disabled ambulance in the right lane was negligent (see Ayala v Kaestner, 224AD2d 266, 267 [1996]). However, the error was remedied by the court's prompt and thoroughcurative instructions, which the jury is presumed to have followed (see e.g. Ortiz v Variety Poly Bags, Inc.,19 AD3d 239, 239-240 [2005]).
HHC's argument that the jury's finding that the decedent was negligent but that hisnegligence was not a proximate cause of his injuries should be set aside as irreconcilablyinconsistent is unpreserved (see Barry v Manglass, 55 NY2d 803, 806 [1981]). Moreover,it does not avail HHC to characterize its failure to preserve the inconsistency argument as anargument addressed to the weight of the evidence (see Sims v Comprehensive Community Dev. Corp., 40 AD3d 256,258 [2007]). In any event, the jury did not find that the decedent's negligence was not aproximate cause of his injuries. It found that the decedent's negligence was not aproximate cause of the accident. Since it is undisputed that there was no evidence that thedecedent caused the accident, the verdict was not inconsistent. HHC's objection to the wording ofthe verdict sheet is unpreserved (see Al Malki v Krieger, 213 AD2d 331, 334 [1995]).
The jury's apportionment of fault is against the weight of the evidence. In light of O'Brien'sadmissions that although he saw the disabled vehicle from at least 50 to 100 feet away he failedto slow down and that his judgment was impaired due to intoxication, his conduct was a greatercause of the accident than the jury found (see Ivezic v Tully Constr. Corp., 47 AD3d 480 [2008]).Concur—Mazzarelli, J.P., Friedman, Nardelli, Buckley and Freedman, JJ.