| Nestro v Harrison |
| 2010 NY Slip Op 08718 [78 AD3d 1032] |
| November 23, 2010 |
| Appellate Division, Second Department |
| Christopher Nestro, Appellant, v Evan D. Harrison et al.,Respondents. (Action No. 1.) Christopher Sanabria, Appellant, v Evan D. Harrison et al.,Respondents. (Action No. 2.) |
—[*1] Albert W. Chianese, Rockville Centre, N.Y. (Thomas P. Reilly of counsel), for appellant inaction No. 2. Shayne, Dachs, Corker, Sauer & Dachs, LLP, Mineola, N.Y. (Norman H. Dachs andJonathan A. Dachs of counsel), for respondents Evan D. Harrison and Diana C. Harrison. Robert P. Tusa, Garden City. N.Y. (Votto & Cassate, LLP [Christopher J. Albee], ofcounsel), for respondent William Reynolds.
In two related actions to recover damages for personal injuries, the plaintiff in action No. 1appeals, as limited by his brief, from so much of a judgment of the Supreme Court, NassauCounty (Galasso, J.), entered August 12, 2009, as, upon the granting of that branch of the motionof the defendants Evan D. Harrison and Diana C. Harrison and that branch of the separate motionof the defendant William Reynolds pursuant to CPLR 4401, made at the close of evidence, whichwere for judgment as a matter of law on the issue of liability in action No. 1, is in favor of thedefendants and against him, dismissing the complaint in action No. 1, and the plaintiff in actionNo. 2 appeals, as limited by his brief, from so much of the same judgment as, upon the grantingof that branch of the motion of the defendants Evan D. Harrison and Diana C. Harrison and thatbranch of the separate motion of the defendant William Reynolds pursuant to CPLR 4401, madeat the close of evidence, which were for judgment as a matter of law on the issue of liability inaction No. 2, is in favor of the defendants and against him, dismissing the complaint in actionNo. 2.
Ordered that the judgment is reversed, on the law, with one bill of costs payable by therespondents appearing separately and filing separate brief, the motions pursuant to CPLR 4401for judgment as a matter of law on the issue of liability in actions Nos. 1 and 2 are denied, thecomplaints in actions Nos. 1 and 2 are reinstated, and a new trial is granted.[*2]
Christopher Nestro and Christopher Sanabria were bothpassengers in a vehicle operated by the defendant Evan D. Harrison and owned by the defendantDiana C. Harrison (hereinafter together the Harrisons), when that vehicle collided with a vehicleoperated by William Reynolds. Nestro commenced action No. 1 against the Harrisons andReynolds. Sanabria commenced action No. 2 against the same defendants. A joint trial was heldon the issue of liability. At the close of the evidence, the trial court granted the Harrisons' andReynolds's separate motions pursuant to CPLR 4401 for judgment as a matter of law on the issueof liability in both action No.1 and action No. 2, and entered a judgment dismissing thecomplaints in both actions. We reverse.
To be awarded judgment as a matter of law pursuant to CPLR 4401, a defendant must showthat there is no rational process by which the jury could find for the plaintiff against the movingdefendant (see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]; Alicea v Ligouri,54 AD3d 784 [2008]; Alameldin v Kings Castle Caterers, Inc., 53 AD3d 514 [2008]). "Inconsidering such a motion, the evidence must be construed in the light most favorable to thenonmoving party, and the motion should not be granted where the facts are in dispute, wheredifferent inferences may be drawn from the evidence, or where the credibility of the witnesses isin question" (Cathey v Gartner, 15 AD3d 435, 436 [2005]; see Cameron v City ofLong Beach, 297 AD2d 773, 774 [2002]). Here, conflicting testimony was presented as tothe facts surrounding this intersection accident. Viewing the evidence in the light most favorableto the nonmovants, sufficient evidence was presented from which the jury could rationally findthat Evan C. Harrison and/or Reynolds were at fault in the happening of the accident (seegenerally Szczerbiak v Pilat, 90 NY2d 553 [1997]). Accordingly, the trial court should nothave granted the defendants' motions for judgment as a matter of law pursuant to CPLR 4401.Dillon, J.P., Angiolillo, Hall and Roman, JJ., concur.