| Cox v Weil |
| 2011 NY Slip Op 06090 [86 AD3d 620] |
| July 26, 2011 |
| Appellate Division, Second Department |
| Kathleen Cox et al., Appellants-Respondents, v Thomas E.Weil, Jr., et al., Respondents, and Peter G. Meyer,Respondent-Appellant. |
—[*1] Zaklukiewicz, Puzo & Morrissey, LLP, Islip Terrace, N.Y. (Joseph M. Puzo of counsel), forrespondent-appellant. Schondebare & Korcz, Ronkonkoma, N.Y. (James A. Schondebare of counsel), fordefendants-respondents Thomas E. Weil, Jr., Thomas E. Weil, Sr., and Leeann Weil. Carman, Callahan & Ingham, LLP, Farmingdale, N.Y. (Michael F. Ingham and Peter F.Breheny of counsel), for defendant-respondent Enterprise Leasing Company (a MarylandCorporation), doing business as Enterprise Rent-A-Car.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of a judgment of the Supreme Court, Suffolk County (Pines, J.), datedSeptember 16, 2010, as, upon a jury verdict, and upon the denial of their motion pursuant toCPLR 4404 (a) to set aside so much of the verdict as found that the defendant Thomas E. Weil,Jr., was not negligent as contrary to the weight of the evidence, is in favor of the defendantsThomas E. Weil, Jr., and Enterprise Leasing Company (a Maryland Corporation), doing businessas Enterprise Rent-A-Car, and against them, dismissing the action insofar as asserted againstthose defendants, and the defendant Peter G. Meyer cross-appeals, as limited by his brief, from somuch of the same judgment as, in effect, upon the jury verdict, and upon the denial of his motionpursuant to CPLR 4404 (a) to set aside so much of the verdict as found that the defendantThomas E. Weil, Jr., was not negligent as contrary to the weight of the evidence, dismissed hiscross claims against the defendants Thomas E. Weil, Jr., and Enterprise Leasing Company (aMaryland Corporation), doing business as Enterprise Rent-A-Car.
Ordered that the judgment is affirmed insofar as appealed and cross-appealed from, with onebill of costs payable to the defendants-respondents by the appellants-respondents andrespondents-appellants, appearing separately and filing separate briefs.
"A driver who has the right-of-way is entitled to anticipate that the other driver will obeytraffic laws which require him or her to yield . . . At the same time, a driver who hasthe right-of-way has a duty to exercise reasonable care to avoid a collision with another vehiclealready in the [*2]intersection. There can be more than oneproximate cause of an accident, and the issue of comparative negligence is generally a questionfor the jury to decide" (Wilson vRosedom, 82 AD3d 970, 970 [2011] [citations and internal quotation marks omitted];see Shea v Judson, 283 NY 393, 398 [1940]). " '[A] driver with the right-of-way who hasonly seconds to react to a vehicle which has failed to yield is not comparatively negligent forfailing to avoid the collision' " (Vainer vDiSalvo, 79 AD3d 1023, 1024 [2010], quoting Yelder v Walters, 64 AD3d 762, 764 [2009]).
Here, contrary to the contention of the plaintiffs and the defendant Peter G. Meyer, the jury'sdetermination that the defendant Thomas E. Weil, Jr., was not negligent in failing to avoid acollision with Meyer's vehicle, which had driven through a red light, was based upon a fairinterpretation of the evidence presented at trial (see Lolik v Big V Supermarkets, 86NY2d 744, 746 [1995]; Nicastro v Park, 113 AD2d 129, 132-134 [1985]). Accordingly,the Supreme Court properly denied the plaintiff's and Meyer's respective motions pursuant toCPLR 4404 (a) to set aside so much of the verdict as found that Weil was not negligent. Rivera,J.P., Covello, Florio and Lott, JJ., concur.