| Salisbury v Christian |
| 2009 NY Slip Op 09752 [68 AD3d 1664] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| Stephen D. Salisbury, Jr., et al., Respondents, v Jonelle K.Christian et al., Appellants. (Appeal No. 1.) |
—[*1] Goldberg Segalla LLP, Albany (Matthew S. Lerner of counsel), for defendant-appellantCentral National Bank. Bottar Leone, PLLC, Syracuse (Anthony S. Bottar of counsel), forplaintiffs-respondents.
Appeals from an order of the Supreme Court, Onondaga County (Anthony J. Paris, J.),entered March 31, 2008 in a personal injury action. The order denied defendants' motions to setaside the jury verdict in part.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs, the motion for a directed verdict is denied, the motions to set aside the verdict inpart are granted, the verdict is set aside in part, and a new trial is granted on the issues ofcausation and damages with respect to plaintiff Christine K. Dannible.
Memorandum: Plaintiffs commenced two actions seeking damages for injuries theysustained when the motorcycle they were riding was rear-ended by a vehicle operated by JonelleK. Christian and leased by Anthony M. Christian (hereafter, Christian defendants) fromdefendant Central National Bank (CNB). Plaintiffs thereafter moved to consolidate the actions,for partial summary judgment on liability, and for dismissal of various affirmative defenses.Supreme Court granted that part of plaintiffs' motion for consolidation and the court, inter alia,granted that part of the motion only with respect to partial summary judgment on negligencerather than liability. The matter proceeded to trial on the issue of damages with respect toplaintiff Stephen D. Salisbury, Jr. and on the issues of causation and damages with respect toChristine K. Dannible (plaintiff). At the close of proof, the court granted plaintiffs' motion for adirected verdict on the issue of causation with respect to plaintiff, and the jury thereafter returneda verdict awarding plaintiffs damages. The Christian defendants moved to set aside the verdictwith respect to plaintiff in the interest of justice, and CNB filed a "cross-motion" also seeking toset aside the verdict with respect to plaintiff. By the order in appeal No. 1, the court denied themotion and "cross-motion." CNB thereafter moved for a collateral source hearing and, by the[*2]order in appeal No. 2, the court, inter alia, stayed "allcollateral source proceedings" pending the resolution of the appeals taken from the order inappeal No. 1. The appeals were consolidated by this Court.
We agree with the Christian defendants in appeal No. 1 that the court erred in denying theirmotion to set aside the verdict with respect to plaintiff based on its error in granting plaintiffs'motion for a directed verdict on causation with respect to plaintiff (see Blanchard v Lifegear, Inc., 45AD3d 1258, 1259-1260 [2007]; see generally Micallef v Miehle Co., Div. ofMiehle-Goss Dexter, 39 NY2d 376, 381 [1976]). First, there were conflicting expert medicalopinions presented at trial on the issue whether plaintiff's injuries were caused by the accident,and thus the issue of causation raised credibility issues for the jury (see Barton v Youmans, 24 AD3d1192 [2005]; Tracy vRapesovska, 4 AD3d 856 [2004]; Tanner v Tundo, 309 AD2d 1244 [2003]).Second, plaintiff's credibility was also an issue for the jury. Significantly, the evidence presentedat trial established that plaintiff failed to inform her expert treating physicians that she hadsuffered similar complaints before the accident, and she gave inconsistent versions of theaccident. "A jury is not required to accept an expert's opinion to the exclusion of the facts andcircumstances disclosed by other testimony and/or the facts disclosed on cross-examination. . . Indeed, a jury is at liberty to reject an expert's opinion if it finds the facts to bedifferent from those which formed the basis for the opinion or if, after careful consideration ofall the evidence in the case, it disagrees with the opinion" (Zapata v Dagostino, 265AD2d 324, 325 [1999]; see Quigg vMurphy, 37 AD3d 1191, 1193 [2007]; PJI 1:90). In addition, a plaintiff may of coursebe impeached by his or her own testimony (see Ashby v Mullin, 56 AD3d 588 [2008]; Holmberg vTraverse, 213 AD2d 924, 926 [1995]). We further agree with CNB that the court erred indenying its motion, improperly denominated a "cross motion" (see Barrett v Watkins, 52 AD3d1000, 1003 n 1 [2008]), to set aside the verdict with respect to plaintiff based on the court'serror in granting plaintiffs' motion for a directed verdict on causation with respect to plaintiff,despite the fact that the "cross motion" was untimely (see CPLR 4405; Casey vSlattery, 213 AD2d 890, 891 [1995]). The liability of CNB is vicarious and thus isinseparable from the liability of the Christian defendants (see generally Lakewood Constr. Co. v Brody, 1 AD3d 1007, 1009[2003]; Beesimer v Albany Ave./Rte. 9 Realty, 216 AD2d 853, 855-856 [1995]).
Finally, we conclude with respect to the order in appeal No. 2 that the court did notimprovidently exercise its discretion in granting a stay of the collateral source proceedingspending resolution of the appeals taken from the order in appeal No. 1 (see CPLR 2201;Britt v Buffalo Mun. Hous. Auth.,63 AD3d 1593 [2009]; Asher v Abbott Labs., 307 AD2d 211 [2003]).Present—Martoche, J.P., Smith, Peradotto, Green and Pine, JJ.