| McAleer v Geraghty |
| 2011 NY Slip Op 00361 [80 AD3d 673] |
| January 18, 2011 |
| Appellate Division, Second Department |
| Kevin P. McAleer, Respondent, v Patrick O. Geraghty etal., Appellants, et al., Defendant. |
—[*1] Meagher & Meagher, P.C., White Plains, N.Y. (Jeremy D. Barberi of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants Patrick O. Geraghty andRock Solid General Construction Corporation appeal, as limited by their brief, from so much ofan order of the Supreme Court, Rockland County (Walsh II, J.), dated September 18, 2009, asdenied those branches of their motion which were pursuant to CPLR 4404 (a) to set aside, ascontrary to the weight of the evidence, a jury verdict on the issue of liability finding them 65% atfault in the happening of the accident and finding the plaintiff only 35% at fault, and for a newtrial.
Ordered that the order is affirmed insofar as appealed from, with costs.
On March 10, 2004, between 6:30 and 7:00 p.m., the plaintiff's vehicle hit the rear end of adump truck in the right northbound lane of the Tappan Zee Bridge. The dump truck was ownedby the defendant Rock Solid General Construction Corporation (hereinafter Rock Solid) andoperated by the defendant Patrick O. Geraghty. At the time of the collision, the dump truck hadbeen stopped on the bridge for approximately 20 minutes. The truck lost power as Geraghty wascrossing the bridge, and it slowly came to a stop where the collision would eventually occur.While stalled on the bridge, Geraghty telephoned his daughter, who owned Rock Solid, to adviseher of the situation. However, Geraghty acknowledges that he remained in the truck and took nofurther steps to facilitate the removal of the truck from the bridge or to warn other drivers of thehazard posed by the stopped truck. Approximately 20 minutes after the truck stopped, theplaintiff was driving northbound in the same lane at approximately 50 to 55 miles per hour. Hewas traveling approximately one car length behind an oversized vehicle. That vehicle swervedsuddenly to the left, and the plaintiff saw, for the first time, the dump truck stopped in theroadway, approximately four to five car lengths away. Despite applying the brakes, the plaintiffcould not avoid colliding with the rear of the dump truck. The plaintiff commenced this actionagainst, among others, the defendants Geraghty and Rock Solid. Following a jury trial on theissue of liability, the jury returned its verdict, finding the defendants Geraghty and Rock Solid(hereinafter together the defendants) 65% at fault in the happening of the accident and theplaintiff 35% at fault. The defendants moved, [*2]inter alia,pursuant to CPLR 4404 (a) to set aside the jury verdict as contrary to the weight of the evidenceand for a new trial. The Supreme Court denied the motion. We affirm.
"The apportionment of fault among defendants is generally an issue of fact for the jury" (see Sydnor v Home Depot U.S.A., Inc.,74 AD3d 1185, 1187 [2010]; Donahue v Smorto, 240 AD2d 464, 465 [1997];Rhoden v Montalbo, 127 AD2d 645, 646 [1987]). "[T]he jury's apportionment of faultshould not be set aside unless it could not have been reached based upon a fair interpretation ofthe evidence" (Sydnor v Home Depot U.S.A., Inc., 74 AD3d at 1187; see Rhoden vMontalbo, 127 AD2d at 646; Nicastro v Park, 113 AD2d 129 [1985]).
Here, the jury's finding that the plaintiff was only 35% at fault in the happening of theaccident while the defendants were 65% at fault was not contrary to the weight of the evidence.Rivera, J.P., Dickerson, Lott and Sgroi, JJ., concur.