| Stubbs v Capellini |
| 2013 NY Slip Op 05122 [108 AD3d 1057] |
| July 5, 2013 |
| Appellate Division, Fourth Department |
| Joanne N. Stubbs, Appellant, v John A. Capellini, III,Respondent, et al., Defendants. (Appeal No. 1.) |
—[*1] Sugarman Law Firm, LLP, Buffalo (Carlton K. Brownell, III, of counsel), fordefendant-respondent.
Appeal from a judgment of the Supreme Court, Niagara County (Ralph A. Boniello,III, J.), entered March 21, 2012. The judgment dismissed the complaint against defendantJohn A. Capellini, III, upon a jury verdict.
It is hereby ordered that the judgment so appealed from is unanimously affirmedwithout costs.
Memorandum: Plaintiff commenced this action seeking to recover damages forpersonal injuries she sustained in an automobile accident that occurred while she wastraveling on the New York State Thruway in the Town of Hamburg, New York.Plaintiff's suit stems from three separate automobile accidents that occurred shortly aftermidnight on November 18, 2007. The facts are largely undisputed. The first accidentinvolved defendant John A. Capellini, III, whose pickup truck and horse trailer slid onice on a thruway overpass when he applied his brakes after seeing the brake lights of avehicle ahead of him. When his truck came to a stop in the median, he observed that thehorse trailer, which had detached from his truck, was blocking the left lane of thethruway. Capellini exited his vehicle and proceeded to warn other vehicles about theaccident. He noticed for the first time while standing on the pavement that it was icy. Thesecond accident involved defendant Ralph J. Freetly, an employee of defendant ABFFreight System, Inc. (ABF), who was driving a tractor trailer in the right lane of thethruway as he approached the Capellini accident. Freetly applied his brakes when he sawtwo tractor trailers stopped on the right shoulder with their flashing lights on and startedto brake more firmly after seeing someone in front of the horse trailer waiving aflashlight. As he braked, the rear trailer of his truck slid and struck one of the tractortrailers parked on the right shoulder, causing the contents of Freetly's trailer to spill ontothe road. Freetly testified that he had not encountered any ice on the thruway from thetime he passed the Pennsylvania border until the time he reached the overpass whereCapellini's accident occurred. The third accident involved plaintiff, who has norecollection of the accident. A non-party witness testified that, as plaintiff was travelingover the overpass, plaintiff applied her brakes, and her vehicle spun around and struckthe guardrail [*2]twice. The witness testified that henoticed that the overpass was icy, but that he could not see any ice even as he stood on it.
Following a trial, the jury returned a verdict finding that Capellini, Freetly andplaintiff were not negligent. ABF thus also was not negligent inasmuch as the basis forits liability was vicarious only. Thereafter, plaintiff moved pursuant to CPLR 4404 (a) to,inter alia, set aside the verdict as against the weight of the evidence and for a new trial. Inappeal No. 2, plaintiff appeals from an order denying her motion. In appeal Nos. 1 and 3,plaintiff appeals from judgments that, inter alia, dismissed the complaint, respectively,against Capellini and against Freetly and ABF upon the jury verdict of no cause ofaction. We note at the outset that, inasmuch as the order in appeal No. 2 is subsumed inthe judgments in appeal Nos. 1 and 3, we dismiss plaintiff's appeal from the order inappeal No. 2 (see Smith v Catholic Med. Ctr. of Brooklyn & Queens, 155 AD2d435, 435 [1989]; see also CPLR 5501 [a] [1]).
In the remaining appeals, plaintiff contends that Supreme Court erred in denying herposttrial motion inasmuch as the verdict is against the weight of the evidence. We rejectthat contention. It is well established that "[a] motion to set aside a jury verdict of nocause of action should not be granted unless the preponderance of the evidence in favorof the moving party is so great that the verdict could not have been reached upon any fairinterpretation of the evidence" (Dannick v County of Onondaga, 191 AD2d 963,964 [1993]; see Kuncio v Millard Fillmore Hosp., 117 AD2d 975, 976 [1986],lv denied 68 NY2d 608 [1986]; see generally Lolik v Big VSupermarkets, 86 NY2d 744, 746 [1995]). Here, there was no such preponderance ofthe evidence in favor of plaintiff. As an initial matter, we note that plaintiff raised for thefirst time in her reply brief the contention that the emergency doctrine was improperlycharged at trial, and thus that contention is not properly before us (see O'Sullivan vO'Sullivan, 206 AD2d 960, 960-961 [1994]). Additionally, we conclude that a fairinterpretation of the evidence presented here would allow the jury to conclude that, (1) inappeal No. 1, Capellini did not know the overpass was icy, that his reactions before andafter the accident were reasonable and that he was not negligent; and that, (2) in appealNo. 3, Freetly's conduct in slowing down as he approached the first accident andattempting to steer his vehicle clear of the horse trailer and the vehicles on the rightshoulder was reasonable under the circumstances (see generally DiSalvo v Hiller, 2 AD3d 1386, 1387[2003]). Present—Smith, J.P., Fahey, Carni, Valentino and Whalen, JJ.