| Adami v Wallace |
| 2009 NY Slip Op 09343 [68 AD3d 1397] |
| December 17, 2009 |
| Appellate Division, Third Department |
| Grace Marie Adami, Appellant, v Gerard J. Wallace et al.,Respondents. (And a Third-Party Action.) (Action No. 1.) Robert L. Adami,Appellant, v Gerard J. Wallace et al., Respondents. (Action No.2.) |
—[*1] David A. Rikard, Prattsville, for Robert L. Adami, appellant. Pemberton & Briggs, Schenectady (Paul Briggs of counsel), for respondents.
McCarthy, J. Appeals (1) from an order of the Supreme Court (Keniry, J.H.O.), enteredOctober 27, 2008 in Greene County, which denied plaintiffs' motions to set aside the verdict, and(2) from two judgments of said court, entered November 28, 2008 and December 2, 2008 inGreene County, upon a verdict rendered in favor of defendants.[*2]
On August 28, 2004, plaintiffs Robert L. Adami andGrace Marie Adami were injured when their motorcycle, driven by Robert Adami, collided witha car they were attempting to pass on State Route 23 in the Town of Durham, Greene County.The car was driven by defendant Gerard J. Wallace and owned by defendant William Wallace,who, along with two 16-year-old boys, were passengers in the car.
Plaintiffs separately commenced actions against defendants, claiming that Gerard Wallacewas negligent in operating the car. Defendants claimed that Robert Adami was negligent inoperating the motorcycle. The actions were joined for trial and the jury rendered its verdict infavor of defendants. Plaintiffs appeal from Supreme Court's denial of their respective motions toset aside the verdict as against the weight of the evidence. Finding the issues of defendants'negligence and causation inextricably interwoven, we are compelled to reverse and remit toSupreme Court for a new trial.
Robert Adami testified that for five or six miles, plaintiffs were behind a car that wasdirectly behind defendants' car and that defendants were driving erratically, accelerating anddecelerating between 30 and 50 miles per hour in a 55 mile per hour zone while heading east onRoute 23. Grace Adami testified that defendants appeared to be looking for something. When thevehicles entered a zone where it was legal to pass by entering a westbound lane of traffic, the carin front of plaintiffs passed defendants' car. Shortly thereafter, in the vicinity of an intersectionwith Cornwallville Road, plaintiffs also pulled into the westbound lane to pass. According todefendants, not far past that intersection, they attempted to enter a driveway on the opposite sideof the road to reverse direction. As defendants' car turned across the highway, it was struck byplaintiffs in the westbound lane. Gerard Wallace testified that, before making the turn, hechecked his rear view and side view mirrors and applied his brakes and turn signal, but admittedthat he never saw or heard the motorcycle prior to the impact. Robert Adami testified thatplaintiffs were traveling at 50 miles per hour and accelerating when defendants' car, which hadbeen veering to the right-hand shoulder of the road, sped up and suddenly turned left in front ofhim without applying the brakes or turn signal.
Supreme Court properly instructed the jury on proximate cause as well as the drivers'respective duties under the Vehicle and Traffic Law. The charge included an instruction thateach of the drivers "was under a duty to . . . keep a proper lookout under thecircumstances then existing to see and be aware of what was in his view, and to use reasonablecare to avoid an accident. A driver is charged with a duty to see that which under the facts andcircumstances he should have seen by the proper use of his senses. And if you find thatdefendant and or [Robert Adami] did not observe that which was there to be seen, you may findthat he was negligent in failing to look or in not looking carefully." The verdict sheet first askedwhether Gerard Wallace was negligent, to which the jury responded "yes," and then askedwhether his negligence was a substantial factor in causing plaintiffs' injuries, to which the juryanswered "no."
"A jury's finding that a party was at fault but that [such] fault was not a proximate cause ofthe [plaintiff's injuries] is inconsistent and against the weight of the evidence only when theissues are so inextricably interwoven as to make it logically impossible to find negligencewithout also finding proximate cause" (Calderon v Irani, 296 AD2d 778, 778 [2002][internal quotation marks and citations omitted]). We defer to the jury's credibilitydeterminations and view the evidence in the light most favorable to the nonmoving party todetermine whether any fair interpretation of the evidence will support the verdict (see Lolik vBig V Supermarkets, 86 NY2d 744, 746 [1995]; Popolizio v County of Schenectady, 62 AD3d 1181, 1183-1184[2009]; [*3]Martin v Clark, 47 AD3d 981, 983 [2008]; McCulley v Sandwick, 43 AD3d624, 626 [2007], appeal dismissed 9 NY3d 976 [2007]). Viewing the evidence indefendants' favor does support a conclusion that both drivers failed to properly observe the other.However, "[w]hile a plaintiff's own conduct may be a superceding cause which severs the causalconnection between [a] defendant's negligence and the injury, in order to be a superceding cause,a plaintiff's negligence must be more than mere contributory negligence, which would berelevant in apportioning culpable conduct" (Skibinski v Salvation Army, 307 AD2d 427,428 [2003] [internal quotation marks and citations omitted]). In our view, no fair interpretationof the evidence "would support the conclusion that [Robert Adami's] conduct was soextraordinary or unforeseeable as to make it unreasonable to hold defendant[s] responsible forthe resulting damages" (Petrone v Mazzone, 284 AD2d 634, 635-636 [2001]; see Lallemand v Cook, 23 AD3d533, 534 [2005]; Yondola vTrabulsy, 22 AD3d 483, 484 [2005]). Accordingly, a new trial is necessary.
Mercure, J.P., Kavanagh, Stein and Garry, JJ., concur. Ordered that the order and judgmentsare reversed, on the law, motions to set aside the verdict granted and matter remitted to theSupreme Court for a new trial, with costs to abide the event.