| Aikens-Hobson v Bruno |
| 2012 NY Slip Op 05604 [97 AD3d 709] |
| July 18, 2012 |
| Appellate Division, Second Department |
| Cecilia Aikens-Hobson et al., Appellants, v Joseph Brunoet al., Defendants, and AC-Delco Cars, Inc., et al., Respondents. |
—[*1] Novins O'Leary (Jason Tenenbaum, Garden City, N.Y., of counsel), for respondentsAC-Delco Cars, Inc., and Kevin Sirota. James G. Bilello (Montfort, Healy, McGuire & Salley, Garden City, N.Y. [Donald S.Neumann, Jr., and Michael Adams], of counsel), for respondent Aamir N. Shakir. Connors & Connors, P.C., Staten Island, N.Y. (Leonard A. Robusto and Kenneth J. Dale ofcounsel), for respondent Brian Bollo.
In an action to recover damages for personal injuries, the plaintiffs appeal from a judgment ofthe Supreme Court, Kings County (Bayne, J.), dated November 17, 2011, which, upon thegranting of the motion of the defendant Aamir N. Shakir and the separate motion of thedefendant Brian Bollo pursuant to CPLR 4401 for judgment as a matter of law, made at the closeof evidence, and upon a jury verdict on the issue of liability in favor of the defendants AC-DelcoCars, Inc., and Kevin Sirota, is in favor of the defendants AC-Delco Cars, Inc., Kevin Sirota,Aamir N. Shakir, and Brian Bollo, and against them dismissing the complaint insofar as assertedagainst those defendants.
Ordered that the judgment is modified, on the facts, by deleting the provision thereofdismissing the complaint insofar as asserted against the defendants AC-Delco Cars, Inc., andKevin Sirota; as so modified, the judgment is affirmed, with one bill of costs to the plaintiffs,payable by the defendants AC-Delco Cars, Inc., and Kevin Sirota, and one bill of costs to thedefendants Aamir N. Shakir and Brian Bollo, payable by the plaintiffs, the complaint is reinstatedinsofar as asserted against the defendants AC-Delco Cars, Inc., and Kevin Sirota, and the matteris remitted to the Supreme Court, Kings County, for a new trial as to the defendants AC-DelcoCars, Inc., and Kevin Sirota.
To succeed on a motion for judgment as a matter of law pursuant to CPLR 4401, a defendanthas the burden of showing that there is no rational process by which the jury could find in favorof the plaintiff and against the moving defendant (see Szczerbiak v Pilat, 90 NY2d 553,556 [1997]; Liounis v New York CityTr. Auth., 92 AD3d 643 [2012]; Velez v Goldenberg, 29 AD3d 780, 781 [2006]). In determiningwhether the defendant has met this burden, a court must consider the facts in the light [*2]most favorable to the plaintiff and accord the plaintiff the benefit ofevery favorable inference which can reasonably be drawn from the evidence presented at trial(see Szczerbiak v Pilat, 90 NY2d at 556; Liounis v New York City Tr. Auth., 92 AD3d 643 [2012];Velez v Goldenberg, 29 AD3d at 781).
The trial court properly granted the separate motions of the defendant Aamir N. Shakir andthe defendant Brian Bollo pursuant to CPLR 4401 since there was no rational process by whichthe jury could find either one of them liable. The evidence demonstrated that both Shakir andBollo operated their vehicles in a nonnegligent manner, and no evidence was presented to showthat they contributed to the happening of the injury-producing event (see generally Daramboukas v Samlidis,84 AD3d 719 [2011]; Franco vBreceus, 70 AD3d 767 [2010]; Shirman v Lawal, 69 AD3d 838 [2010]; Smith v Seskin, 49 AD3d 628[2008]; Katz v Masada II Car & LimoServ., Inc., 43 AD3d 876 [2007]).
However, the jury's finding that the defendant Kevin Sirota, the operator of a vehicle ownedby his employer, the defendant AC-Delco Cars, Inc., was negligent, but that his negligence wasnot a proximate cause of the accident, was contrary to the weight of the evidence. Under thecircumstances, the issues of negligence and proximate cause were so inextricably interwoven thatit would be logically impossible for the jury to find that Sirota was negligent without also findingthat his negligence was a proximate cause of the accident (see Stewart v Marte, 91 AD3d 754, 754-755 [2012]; McConnell v Santana, 77 AD3d635, 636-637 [2010]). Accordingly, a new trial is necessary with respect to the defendantsAC-Delco Cars, Inc., and Kevin Sirota.
The plaintiffs' remaining contentions are not preserved for appellate review, are withoutmerit, or need not be considered in view of the foregoing analysis. Mastro, A.P.J., Angiolillo,Austin and Sgroi, JJ., concur.