| Barbieri v Vokoun |
| 2010 NY Slip Op 03259 [72 AD3d 853] |
| April 20, 2010 |
| Appellate Division, Second Department |
| Gabriella Barbieri, Respondent, v Daniel P. Vokoun,Appellant. |
—[*1] Ferro, Kuba, Mangano, Skylar, P.C., Hauppauge, N.Y. (Rebecca J. Fortney and Kenneth E.Mangano of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Nassau County (Martin, J.), dated June 9,2009, as granted the plaintiff's motion pursuant to CPLR 4404 (a) to set aside a jury verdict inhis favor as contrary to the weight of the evidence, and for a new trial.
Ordered that the order is affirmed insofar as appealed from, with costs.
Early in the evening of September 22, 2006, the 77-year-old plaintiff Gabriella Barbieri waspushing a shopping cart across 7th Street in East Meadow when she and her cart were struck by aleft-turning vehicle driven by the 20-year-old defendant, Daniel P. Vokoun. As a result of theaccident, the plaintiff allegedly sustained injuries, including a fractured shoulder.
At trial more than three years later, the plaintiff testified that she was on her way home witha bag of items she had purchased at the supermarket when she reached the intersection of 7thStreet and Prospect Avenue. Upon arriving at the intersection and observing that the lightcontrolling traffic on 7th Street was red, the plaintiff pushed a pedestrian signal button to promptthe light to change. When the light turned green, the plaintiff began to cross 7th Street. Theplaintiff estimated that she had taken about five steps when the front of the defendant's vehiclestruck her shopping cart and then struck her, throwing her to the ground. She also testified thatshe did not see the defendant's vehicle, which was stopped at the light, begin to move when thelight turned green.
The defendant, who had been a licensed driver for about a year when the accident occurred,recalled that he and his passenger, Nicole Cline, were on their way to a friend's house when hestopped his vehicle at a red light at the subject intersection. The defendant acknowledged thatwhen he arrived at the intersection, he saw the plaintiff standing with her shopping cart on thesidewalk at the corner "next to the pole with the button on it that she had pushed." He alsoobserved pedestrian crosswalks painted on all fours sides of the intersection. When the lightturned green, a vehicle on the opposite side of Prospect Avenue, which was facing thedefendant's vehicle, began [*2]making a right turn. After thatvehicle had completed its turn, the defendant began to make a left turn. The defendant estimatedthat the light had been green for four or five seconds before he began turning, and stated that hebelieved the plaintiff, who was still on the sidewalk at that point, "was going to stay there." Thedefendant admittedly did not keep the plaintiff under observation while he was executing histurn, and only realized that an accident had occurred when he heard the sound of metal cominginto contact with the rubber wheels of the shopping cart, and saw the plaintiff lying in the street.Asked where the impact occurred, the defendant replied "right before the crosswalk." Thedefendant also claimed that the plaintiff's cart was piled high with opaque black plastic bags,which he surmised contained empty bottles, and may have impeded her view of the intersection.
Cline testified that the defendant's vehicle was stopped at the light when she first noticed theplaintiff walking toward the intersection. According to Cline, the plaintiff "slowed down whenshe got to the end of the sidewalk and then she stopped prior to the intersection." She did not seethe plaintiff move into the intersection before the defendant started his turn. Asked where thedefendant's car was located when the collision occurred, Cline testified that it was already in thecrosswalk. Cline first realized that an accident had occurred when she heard the crash of"metal-to-metal." At that point, she "observed a cart that was half way on the sidewalk, half wayin the street, and [the plaintiff] was on the ground, on the sidewalk."
At the conclusion of the trial, the jury returned a verdict finding that the defendant was notnegligent in the happening of the accident. The plaintiff then moved pursuant to CPLR 4404 (a)to set aside the jury verdict as contrary to the weight of the evidence, and the Supreme Courtgranted her motion. We affirm.
A jury verdict should not be set aside as contrary to the weight of the evidence unless thejury could not have reached the verdict by any fair interpretation of the evidence (seeNicastro v Park, 113 AD2d 129, 134 [1985]). While great deference must be accorded to thefact-finding function of the jury, a trial court's discretion to set aside the verdict " 'is at itsbroadest when it appears that the unsuccessful litigant's evidentiary position was particularlystrong compared to that of the victor' " (Pire v Otero, 123 AD2d 611, 611 [1986],quoting Nicastro v Park, 113 AD2d at 136; see Panariello v Ballinger, 248 AD2d452 [1998]).
Here, no fair interpretation of the evidence supports a finding that the defendant was entirelyfree of negligence in the happening of this accident. Although a driver facing a steady green lightis entitled to proceed, he or she has a duty to yield the right-of-way to pedestrians lawfullywithin a crosswalk (see Vehicle and Traffic Law § 1111 [a] [1]). The plaintiff'stestimony that she was within the crosswalk when she was struck by the defendant's vehicle wascorroborated by the testimony of the defendant's passenger, who admitted that his vehicle was inthe crosswalk when the collision occurred. While the defendant claimed that the impact occurredright before his vehicle entered the crosswalk, this claim was inconsistent with his admission thatupon arriving at the intersection he observed the plaintiff standing at the corner next to thepedestrian signal button. From this location, the plaintiff would have been within the crosswalkwhen she stepped off the sidewalk into the street. The defendant's claim that the impact occurredjust before his vehicle entered the crosswalk is also inconsistent with the fact that he was alreadyin the process of executing a left turn onto Prospect Avenue when his vehicle came into contactwith the plaintiff and her shopping cart. Accordingly, we do not agree with our dissentingcolleague that there was no clear evidence that the defendant violated Vehicle and Traffic Law§ 1111 (a) (1). Since a violation of a standard of care imposed by the Vehicle and TrafficLaw constitutes negligence per se (seeCoogan v Torrisi, 47 AD3d 669, 670 [2008]; Jones v Radeker, 32 AD3d 494, 496 [2006]; Lagana v Fox, 6 AD3d 583[2004]), the jury verdict completely absolving the defendant of any responsibility for theaccident was contrary to the weight of the evidence (see Benedikt v Certified Lbr. Corp., 60 AD3d 798 [2009]; Voskin v Lemel, 52 AD3d 503[2008]; Kirchgaessner vHernandez, 40 AD3d 437, 438 [2007]; Pire v Otero, 123 AD2d 611 [1986]).
Furthermore, the jury's finding could not be upheld even if the plaintiff stepped slightlyoutside the boundaries of the marked crosswalk while traversing 7th Street. The defendant had astatutory duty to use due care to avoid colliding with pedestrians on the roadway (seeVehicle [*3]and Traffic Law § 1146), as well as acommon-law duty to see that which he should have seen through the proper use of his senses (see Domanova v State of New York,41 AD3d 633, 634 [2007]; Larsen vSpano, 35 AD3d 820, 822 [2006]). The defendant's own testimony demonstrates that hewas well aware that the plaintiff was standing at the corner waiting to cross 7th Street before hebegan executing his turn. Nevertheless, he admittedly failed to keep the plaintiff underobservation as he made his turn, and did not even see her in the roadway until after the collision.Nor is there any evidence to support a view that the 77-year-old plaintiff, pushing a shoppingcart containing at least one filled bag, darted off the sidewalk so suddenly and without warningthat the defendant could not have avoided the collision in the exercise of due care. Under thesecircumstances, the verdict could not have been reached on any fair interpretation of the evidence(see Domanova v State of New York, 41 AD3d at 634; Larsen v Spano, 35AD3d at 822; Finkel v Benoit, 211 AD2d 749, 750 [1995]; Pire v Otero, 123AD2d 611 [1986]; see also Benedikt vCertified Lbr. Corp., 60 AD3d 798 [2009]; Voskin v Lemel, 52 AD3d 503 [2008]). Eng, Belen and Austin, JJ.,concur.
Skelos, J.P., dissents and votes to reverse the order insofar as appealed from and reinstate thejury verdict on the issue of liability, with the following memorandum: As the majority notes,there was conflicting testimony at trial regarding whether the plaintiff was within the boundariesof the crosswalk at the time of the collision. Vehicle and Traffic Law § 1111 (a) (1)provides, in relevant part, that "[t]raffic, except pedestrians, facing a steady circular green signalmay proceed straight through or turn right or left unless a sign at such place prohibits either suchturn. Such traffic, including when turning right or left, shall yield the right of way to other trafficlawfully within the intersection or an adjacent crosswalk at the time such signalis exhibited" (emphasis added). While the plaintiff testified that her shopping cart was lawfullyin the crosswalk when it was struck by the defendant's vehicle, as the majority noted, thedefendant testified that the impact occurred "right before the crosswalk." In light of thisconflicting testimony, the jury was free to resolve the issue of fact in favor of the defendant andconclude that the defendant did not violate Vehicle and Traffic Law § 1111 (a) (1).
In addition, according to the plaintiff, when she reached the intersection, she pushed thetraffic control button attached to a corner pole in order to change the traffic light. The plaintifffurther testified that when the light changed, she stepped into the street with her cart and tookapproximately five steps before the defendant's vehicle struck the front of her cart. However, thetestimony of the defendant driver and his passenger both indicated that the plaintiff was standingon the sidewalk with her shopping cart as the defendant driver lawfully proceeded into theintersection to make a left-hand turn. According to their testimony, as the defendant's vehiclewas proceeding through the intersection making the left-hand turn, the plaintiff's shopping cartremained on the sidewalk. Moreover, the defendant testified that the plaintiff, who was pushing ashopping cart that obstructed her view, because it was filled with garbage bags approximatelyfour-feet high and one foot taller than the plaintiff, walked off the curb and pushed her cart intohis vehicle. The defendant driver and his passenger also testified that, at the time of impact, theplaintiff's shopping cart hit the right front fender of the defendant's vehicle. Again, in light of thisconflicting testimony, the jury was free to resolve the issue of fact in favor of the defendant andconclude that the defendant did not violate Vehicle and Traffic Law § 1146, whichprovides, in relevant part, that "every driver of a vehicle shall exercise due care to avoidcolliding with any . . . pedestrian . . . upon any roadway."
Further, the defendant's contention that the plaintiff walked off the curb and pushed her cartinto his vehicle is further supported by the presence and action of another vehicle at theintersection. The plaintiff and the other vehicle were both stopped at the red light facing oppositedirections. When the light turned green, the defendant pulled into the intersection and waited forthe other vehicle to make a right-hand turn. After the other vehicle completed the right-handturn, which necessarily brought it in front of the plaintiff who was still standing on the sidewalk,the defendant then started to make his turn. In light of the action of that other vehicle, and theplaintiff's age and location on the sidewalk when the other vehicle was making its turn, Iconclude that the jury verdict [*4]did not so preponderate infavor of the plaintiff that the verdict could not have been reached upon any fair interpretation ofthe evidence (see Nazario v Stalica, 272 AD2d 903 [2000]; McLean v Dessert,267 AD2d 962, 963 [1999]; Silverstein v Manhattan & Bronx Surface Tr. OperatingAuth., 159 AD2d 452, 452-453 [1990]; see generally Lolik v Big V Supermarkets,86 NY2d 744, 746 [1995]; Vingo vRosner, 29 AD3d 896, 897 [2006]; Nicastro v Park, 113 AD2d 129, 134[1985]).
Whether a jury verdict should be set aside as contrary to the weight of the evidence does notinvolve a question of law, but rather requires a discretionary balancing of many factors (seeCohen v Hallmark Cards, 45 NY2d 493 [1978]; Nicastro v Park, 113 AD2d at 129).It is for the jury to make determinations as to the credibility of the witnesses, and it is accordedgreat deference, as it had the opportunity to see and hear the witnesses (see Emeagwali v Brooklyn Hosp. Ctr.,60 AD3d 891, 892 [2009]; Bertellev New York City Tr. Auth., 19 AD3d 343 [2005]). Thus, it was for the jury to resolveconflicting testimony, and I perceive no basis to disturb the jury's resolution of the credibilityissue (see generally Wahid v Long Is.R.R. Co., 59 AD3d 712, 713 [2009]).
Here, as aforesaid, the jury could have inferred from the testimony at trial that the accidentoccurred suddenly and without warning when the plaintiff stepped off the curb, outside of thecrosswalk and beyond the view of the defendant driver (see e.g. Johnson v Lovett, 285AD2d 627 [2001]; Carrasco v Monteforte, 266 AD2d 330, 331 [1999]). Therefore, thejury could have concluded that the defendant did not violate Vehicle and Traffic Law §1111 (a) (1) or § 1146 (see e.g. Asaro v Micali, 292 AD2d 552, 553 [2002]).Contrary to the majority view, even assuming the accident occurred in the intersection, astestified by the plaintiff and the defendant's passenger, that fact does not exclude the jury'sapparent finding that the accident occurred suddenly and without warning to the defendant whenthe plaintiff, whose view was obstructed, stepped off the curb and into the defendant's vehicle.Further, contrary to the majority, to the extent there are conflicts in the testimony, I see nonewhich mandate a finding that the jury's verdict could not have been reached upon any fairinterpretation of the evidence.
Accordingly, the Supreme Court should not have set aside the verdict (see generally Soto v New York City Tr.Auth., 6 NY3d 487 [2006]; Derdiarian v Felix Contr. Corp., 51 NY2d 308[1980]) and I respectfully dissent.