| Alli v Lucas |
| 2010 NY Slip Op 03393 [72 AD3d 994] |
| April 27, 2010 |
| Appellate Division, Second Department |
| Irma Alli, Appellant, v Steven Lucas, Respondent, et al.,Defendant. |
—[*1] Carman, Callahan & Ingham LLP, New York, N.Y. (Michael F. Ingham of counsel), forrespondent and for defendant ELRAC, Inc.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by herbrief, from so much of a judgment of the Supreme Court, Queens County (James Golia, J.),entered May 6, 2009, as, upon a jury verdict in favor of the defendant Steven Lucas and againsther on the issue of liability, and upon the denial of her motion pursuant to CPLR 4404 to setaside the verdict as against the weight of the evidence, is in favor of that defendant and againsther, dismissing the complaint insofar as asserted against that defendant.
Ordered that the judgment is reversed insofar as appealed from, on the law and the facts,with costs, the plaintiff's motion pursuant to CPLR 4404 to set aside the verdict as against theweight of the evidence is granted, and the matter is remitted to the Supreme Court, QueensCounty, for a new trial.
The plaintiff was struck by a vehicle being driven by the defendant Steven Lucas (hereinafterthe defendant) as she was crossing the "T" intersection of Hillside Avenue and 195th Street inQueens. It is undisputed that there is no marked crosswalk extending across Hillside Avenue atits intersection with 195th Street, and that there is no traffic control device for motorists drivingon Hillside Avenue at that location. At trial the plaintiff testified that she had no memory of whatoccurred after she stepped off the median separating the eastbound and westbound lanes oftraffic on Hillside Avenue, and began to cross the westbound side of the roadway. Thedefendant, who was driving in the middle westbound lane of Hillside Avenue when the collisionoccurred, testified that he did not see the plaintiff attempting to cross the roadway until adelivery truck in front of him suddenly swerved to the left, at a point when two other vehicleswere traveling on either side of the defendant's vehicle. In contrast, an eyewitness who observedthe defendant's vehicle strike the plaintiff testified that he did not recall seeing a truck travelingin front of the defendant's vehicle, and that the only vehicle he observed was the defendant'svehicle.
At the conclusion of the trial the jury returned a verdict finding that the defendant wasnegligent, but that his negligence was not a substantial factor in causing the accident. Theplaintiff then moved pursuant to CPLR 4404 to set aside the verdict as against the weight of theevidence, and the Supreme Court denied her motion. We reverse.[*2]
A jury verdict should not be set aside as against theweight of the evidence unless the jury could not have reached the verdict by any fairinterpretation of the evidence (see Nicastro v Park, 113 AD2d 129, 134 [1985]; see also Cartica v Kieltyka, 55 AD3d523, 524 [2008]). "A jury finding that a party was negligent but that the negligence was nota proximate cause of the accident is inconsistent and against the weight of the evidence onlywhen the issues are 'so inextricably interwoven as to make it logically impossible to findnegligence without also finding proximate cause' " (Zhagui v Gilbo, 63 AD3d 919, 919 [2009], quoting Rubin vPecoraro, 141 AD2d 525, 527 [1988]; see Amaral v Reph, 70 AD3d 613 [2010]; Cartica vKieltyka, 55 AD3d at 524). Under the circumstances of this case, where it can be inferredfrom the jury's finding of negligence that it did not credit the defendant's account of how theaccident happened, the finding that the defendant's negligence was not a proximate cause of theaccident did not rest upon a fair interpretation of the credible evidence (see Powell vTuyn, 306 AD2d 335, 336 [2003]; see also Amaral v Reph, 70 AD3d 613 [2010]; Cartica vKieltyka, 55 AD3d at 524; Panariello v Ballinger, 248 AD2d 452, 453 [1998]).
Furthermore, since there was sufficient evidence adduced at trial from which the jury couldhave reasonably concluded that the plaintiff was within an unmarked cross walk when theaccident occurred (see Kochloffel v Giordano, 99 AD2d 798, 799 [1984]), the SupremeCourt should have granted the plaintiff's request to charge the jury with respect to a motorist'sobligation to yield the right-of-way pursuant to 34 RCNY 4-04 (b) (1) (see Fan vBuzzitta, 42 AD2d 40 [1973]).
The plaintiff's remaining contention is without merit. Covello, J.P., Florio, Miller and Eng,JJ., concur.