| Ward v Watson |
| 2010 NY Slip Op 03115 [72 AD3d 808] |
| April 13, 2010 |
| Appellate Division, Second Department |
| Sherald Ward, Respondent, v Deborah Tatum Watson,Respondent, and Robert Cappetta, Appellant. |
—[*1] Wittenstein & Associates, P.C., Brooklyn, N.Y. (Harlan Wittenstein of counsel), forplaintiff-respondent. Longo & D'Apice, Brooklyn, N.Y. (Joseph M. Dashe of counsel), fordefendant-respondent.
In an action to recover damages for personal injuries, the defendant Robert Cappetta appeals,as limited by his brief, from so much of an order of the Supreme Court, Kings County (Schack,J.), dated January 30, 2009, as, in effect, upon reargument, adhered to an original determinationdated September 17, 2008, granting the separate motions of the plaintiff and the defendantDeborah Tatum Watson pursuant to CPLR 4404 (a) to set aside the jury verdict on the issue ofliability in favor of him as contrary to the weight of the evidence, and for a new trial.
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs,upon reargument, the original determination dated September 17, 2008, is vacated, the separatemotions of the plaintiff and the defendant Deborah Tatum Watson pursuant to CPLR 4404 (a) toset aside the jury verdict on the issue of liability in favor of the appellant as contrary to theweight of the evidence, and for a new trial, are denied, and the jury verdict is reinstated.
The plaintiff was a front-seat passenger in a motor vehicle being operated by the appellant inthe left lane of the eastbound roadway of Merrick Road in Valley Stream, when it collided with amotor vehicle operated by the defendant Deborah Tatum Watson. According to the appellant'strial testimony, when the accident occurred, the Watson vehicle was positioned almostperpendicular to the lane in which he was traveling. Moreover, Ms. Watson informed him afterthe occurrence that she was attempting to execute a left turn from where she had been parkedalong the right side of the roadway. Following a trial on the issue of liability, the jury found thatthe appellant had been negligent, but that his negligence was not a substantial factor in causingthe collision. The plaintiff and the defendant Deborah Tatum Watson separately moved pursuantto CPLR 4404 (a) to set aside the verdict as contrary to the weight of the evidence and for a newtrial. The Supreme Court granted the motions. Thereafter, by order to show cause, the appellantmoved, in effect, for leave to reargue. Upon reargument, the Supreme Court adhered [*2]to its original determination.
"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" (Butler v NewYork City Tr. Auth., 67 AD3d 620, 621 [2009] [internal quotation marks and citationomitted]). "A contention that a verdict is inconsistent and irreconcilable must be reviewed in thecontext of the court's charge, and where it can be reconciled with a reasonable view of theevidence, the successful party is entitled to the presumption that the jury adopted that view" (Rivera v MTA Long Is. Bus, 45 AD3d557, 558 [2007]).
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 theappellant. Applying the Supreme Court charge regarding the broad duties and generalobligations of a driver, as well as the duty of a driver to maintain a reasonably safe rate of speed,the jury could have reasonably found that the appellant was negligent in failing to see Watson'svehicle prior to the collision, and also in failing to maintain a reasonably safe rate of speed, butthat the appellant's negligence was not a proximate cause of the accident, given the position fromwhich Watson attempted to make a left turn and the speed at which her vehicle was traveling (see Butler v New York City Tr. Auth.,67 AD3d 620 [2009]).
Accordingly, upon reargument, the Supreme Court should have vacated the originaldetermination and denied the separate motions of the plaintiff and Watson pursuant to CPLR4404 (a) to set aside the jury verdict. Mastro, J.P., Miller, Austin and Roman, JJ., concur.