| Ledogar v Forbes |
| 2011 NY Slip Op 03812 [84 AD3d 749] |
| May 3, 2011 |
| Appellate Division, Second Department |
| Roseann McGlynn Ledogar et al., Appellants, v CaitlinForbes et al., Respondents. |
—[*1] Zaklukiewicz Puzo & Morrissey, LLP, Islip Terrace, N.Y. (Joseph M. Puzo of counsel), forrespondents.
In an action, inter alia, to recover damages for wrongful death and personal injuries, theplaintiffs appeal from a judgment of the Supreme Court, Suffolk County (Pitts, J.), enteredDecember 4, 2009, which, upon a jury verdict in favor of the defendants on the issue of liability,and upon the denial of their motion pursuant to CPLR 4404 (a) to set aside the verdict asinconsistent and contrary to the weight of the evidence, is in favor of the defendants and againstthem, dismissing the complaint.
Ordered that the judgment is reversed, on the law, with costs, the plaintiffs' motion to setaside the verdict is granted, the complaint is reinstated, and the matter is remitted to the SupremeCourt, Suffolk County, for a new trial on the issue of liability.
On January 13, 2007, Thomas F. McGlynn (hereinafter the decedent) was operating hisvehicle westbound on Church Street, in the Town of Islip, when he attempted to make a left turnonto the southbound lanes of Lakeland Avenue. As his vehicle crossed the northbound lanes ofLakeland Avenue, a northbound vehicle operated by the defendant Caitlin Forbes (hereinafterForbes) and owned by the defendant Colleen Forbes collided with it, causing fatal injuries to thedecedent and serious injury to Gaetana McGlynn, his wife, who was a passenger in his car. Theplaintiffs, Roseann McGlynn Ledogar, as executor of the decedent's estate, and GaetanaMcGlynn, commenced this action, inter alia, to recover damages for wrongful death and personalinjuries, alleging that Forbes's negligent operation of the defendants' vehicle caused thoseinjuries. The action eventually proceeded to trial. The plaintiffs contended that the Forbes vehicleran a red light, and also that she was using her cell phone while operating the vehicle. Thedefendants contended that their vehicle had a green light and that it was the decedent who hadrun a red light. An eyewitness who had been traveling northbound on Lakeland Avenue testifiedthat the traffic light governing the northbound traffic on Lakeland Avenue was green, thussupporting the defendants' account.
After a trial on the issue of liability, the jury returned a verdict finding, in answer to the firsttwo questions on the verdict sheet, that Forbes was negligent in the operation of her vehicle, butalso that [*2]her negligence was not a substantial factor inbringing about the accident. Notwithstanding the direction on the verdict sheet that the jury notproceed to the remaining questions in light of such a finding, but that it report its verdict, the juryanswered the third question on the verdict sheet, indicating that the decedent was not negligent inoperating his vehicle. The plaintiffs' counsel moved to set aside the verdict as inconsistent andcontrary to the weight of the evidence. Alternatively, counsel requested that the Supreme Courtinstruct the jury that its verdict was inconsistent and direct that it resume deliberations. TheSupreme Court denied the motion to set aside the verdict, but pointed out to the jury that it hadanswered the third question despite the instructions on the verdict sheet not to reach that questionin the event it found that Forbes's negligence was not a substantial factor in bringing about theaccident. The Supreme Court told the jury that "we are in a quandary to understand what thatmeans." It returned the completed verdict sheet to the jury, and also gave the jury a new copy ofthe verdict sheet, instructing it to continue its deliberations and to complete the new verdictsheet. The court further told the jury that if it had "any questions about my instructions to you onthe verdict sheet or any questions on my instructions concerning the law in this area, by all meanssend out a note and I'll be happy to answer your question for you." The jury then returned averdict finding that Forbes was negligent but that her negligence was not a substantial factor inbringing about the accident. This time, the jury, in light of its answers regarding Forbes'snegligence, did not answer the question regarding the decedent's negligence, in compliance withthe court's instructions. A judgment dismissing the complaint was entered on the verdict, and theplaintiffs appeal. We reverse.
"Where there is an internal inconsistency in a jury's verdict, the court can either declare amistrial or require the jury to further consider its answers and verdict" (Cortes v Edoo,228 AD2d 463, 465 [1996]; see Roberts v County of Westchester, 278 AD2d 216, 217[2000]; Clarke v Order of Sisters of St. Dominic, 273 AD2d 431, 432-433 [2000]). Here,as the plaintiffs' counsel argued, the jury's first verdict was internally inconsistent. Under thefacts presented, the conduct of at least one of the two drivers must have been a proximate causeof the accident, although the jury could reasonably have found that Forbes was negligent by usingher cell phone, without that negligence being a proximate cause of this accident. The SupremeCourt should have explained the inconsistency in the jury's verdict, but its instructions wereinadequate to ensure that the jury addressed its apparent confusion (see Cortes v Edoo,228 AD2d at 466). Accordingly, a new trial is necessary (see Kevii v Cenname, 21 AD3d 1061, 1062 [2005]; Cortes vEdoo, 228 AD2d at 466).
Contrary to the plaintiffs' contention, the Supreme Court did not err in denying their requestfor a Noseworthy charge (see Noseworthy v City of New York, 298 NY 76, 80[1948]).
In view of our determination, we do not reach the plaintiffs' remaining contention. Dillon,J.P., Florio, Balkin and Eng, JJ., concur.