| Butler v New York City Tr. Auth. |
| 2009 NY Slip Op 07971 [67 AD3d 620] |
| November 4, 2009 |
| Appellate Division, Second Department |
| Denis J. Butler, Respondent, v New York City TransitAuthority et al., Appellants. |
—[*1] Sullivan Papain Block McGrath & Cannavo, P.C., New York, N.Y. (Brian J. Shoot, Vito A.Cannavo, and Marie Ng of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Kings County (Ruchelsman, J.), dated September 4, 2008, which granted theplaintiff's motion pursuant to CPLR 4404 (a) to set aside a jury verdict in their favor, and for anew trial.
Ordered that the order is reversed, on the law, with costs, the plaintiff's motion is denied, thejury verdict is reinstated, and the matter is remitted to the Supreme Court, Kings County, forentry of an appropriate judgment.
"A jury's finding that a party was at fault but that [such] fault was not a proximate cause ofthe accident is inconsistent and against the weight of the evidence only when the issues are 'soinextricably interwoven as to make it logically impossible to find negligence without alsofinding proximate cause' " (Schaefer v Guddemi, 182 AD2d 808, 809 [1992], quotingRubin v Pecoraro, 141 AD2d 525, 527 [1988]). "A contention that a verdict isinconsistent and irreconcilable must be reviewed in the context of the court's charge, and whereit can be reconciled with a reasonable view of the evidence, the successful party is entitled to thepresumption that the jury adopted that view" (Rivera v MTA Long Is. Bus, 45 AD3d 557, 558 [2007]; seeRubin v Pecoraro, 141 AD2d at 527).
Here, a finding of proximate cause did not inevitably flow from the finding of culpableconduct, and a fair interpretation of the evidence supports the jury verdict in favor of thedefendants. Applying the Supreme Court's charge regarding the broad duties and generalobligations of a driver, the jury could reasonably have found that the defendant EmmanuelAmpofo (hereinafter the defendant driver) was negligent in failing to see the plaintiff's vehicleprior to the collision, but that "the defendant [driver's] negligence was not a proximate cause ofthe accident given the speed with which the accident occurred" (Abre v Sherman, 36 AD3d 725,726 [2007]; see Rivera v MTA Long Is. Bus, 45 AD3d at 558; Serra v Rivieccio, 4 AD3d 521,522 [2004]; Rubin v Pecoraro, 141 AD2d at 527).
Furthermore, "[t]he plaintiff's contention that the Supreme Court should have reinstructedthe jury on the issue of proximate cause after it returned an initial inconsistent verdict [*2]is not preserved for appellate review" (Meade v Hisler, 306AD2d 387, 387 [2003]; see Rokitka v Barrett, 303 AD2d 983, 984 [2003]). In any event,under the circumstances present here, "a new trial is not required on the ground that the trialcourt failed to give the [jurors] further instructions on proximate cause when it directed them toreconsider their verdict" (Mayer v Goldberg, 241 AD2d 309, 312 [1997]; see Meadev Hisler, 306 AD2d at 387; Rokitka v Barrett, 303 AD2d at 984; cf. Roberts vCounty of Westchester, 278 AD2d 216, 217 [2000]; Cortes v Edoo, 228 AD2d 463,465 [1996]).
Accordingly the Supreme Court erred in granting the plaintiff's motion to set aside theverdict, and for a new trial. Dillon, J.P., Dickerson, Lott and Austin, JJ., concur.