| Bzezi v Eldib |
| 2013 NY Slip Op 08397 [112 AD3d 772] |
| December 18, 2013 |
| Appellate Division, Second Department |
| Wajdy K. Bzezi, Appellant, v Rehab Ahmed Eldibet al., Defendants, and Mary Gori, Respondent. (Appeal No. 1.) Wajdy K. Bzezi,Plaintiff, v Rehab Ahmed Eldib et al., Appellants, and Mary Gori, Respondent. (AppealNo. 2.) |
—[*1] Rhonda H. Barry, Jericho, N.Y. (Thomas Torto and Jason Levine of counsel), forappellants in appeal No. 2. Longo & D'Apice, Brooklyn, N.Y. (Mark A. Longo of counsel), for respondent inappeal Nos. 1 and 2.
In an action to recover damages for personal injuries, the plaintiff appeals, as limitedby his brief, from so much of a judgment of the Supreme Court, Kings County (Bayne,J.), entered March 9, 2012, as, upon the granting of that branch of the motion of thedefendant Mary Gori pursuant to CPLR 4401, made at the close of evidence, which wasfor judgment as a matter of law dismissing the complaint insofar as asserted against her,is in favor of the defendant Mary Gori and against him dismissing the complaint insofaras asserted against that defendant, and the defendants Rehab Ahmed Eldib and MohamedGhazy separately appeal, as limited by their brief, from so much of the same judgment as,upon a sua sponte finding that they were 100% at fault in the happening of the accidentand the granting of that branch of the motion of the defendant Mary Gori pursuant toCPLR 4401, made at the close of evidence, which was for judgment as a matter of lawdismissing the cross claims asserted by them against the defendant Mary Gori, is in favorof that defendant and against them dismissing the cross claims that they asserted againstthe defendant Mary Gori.
Ordered that the judgment is reversed, on the law, with one bill of costs, the motionof the defendant Mary Gori pursuant to CPLR 4401 is denied, the complaint and thecross claims against the defendant Mary Gori are reinstated, and the matter is remitted tothe Supreme Court, Kings County, for a new trial on the issue of liability, and a trial onthe issue of damages, if warranted.
On July 9, 2007, a motor vehicle accident occurred at the intersection of 85th Street[*2]and Ridge Boulevard in Brooklyn between a vehicleowned by the defendant Rehab Ahmed Eldib and operated by the defendant MohamedGhazy, and a vehicle owned and operated by the defendant Mary Gori. The plaintiff wasa passenger in the vehicle operated by Ghazy. The plaintiff commenced this actionagainst the defendants to recover damages for personal injuries.
At trial, the plaintiff testified that Ghazy, who was operating his vehicle on 85thStreet, ran a red light at the subject intersection, and that Gori's vehicle, which wastraveling on Ridge Boulevard, struck the left side of Ghazy's vehicle. The plaintiff alsotestified that the left side of Ghazy's vehicle sustained damage, while Gori's vehiclesustained damage to its front. On cross-examination, the plaintiff was confronted with hisdeposition testimony, in which he averred that he did not see the traffic light untilGhazy's vehicle was already within the intersection, and that he did not look at the trafficlight before Ghazy's car entered the intersection.
Ghazy, on the other hand, testified at trial that he entered the subject intersectionwith the green light in his favor, and that Gori ran a red light and struck his vehicle whileit was in the intersection. Ghazy asserted that his vehicle was damaged near the "left lightand tire," while Gori's vehicle sustained damage to the headlights and right-side bumper.Gori was precluded from testifying at trial as the result of a pretrial order of preclusion.
At the close of the defendants' cases, Gori moved pursuant to CPLR 4401 forjudgment as a matter of law on the issue of liability and, thus, sought dismissal of thecomplaint insofar as asserted against her, as well as the dismissal of the cross claimsasserted against her by Eldib and Ghazy. The trial court granted that branch of the motionwhich was addressed to the complaint, and thereupon dismissed the complaint insofar asasserted against Gori. The trial court sua sponte found that Ghazy was100% at fault inthe happening of the accident, and that Eldib was vicariously liable therefor, andthereupon granted that branch of the motion which was addressed to their cross claimsand dismissed those cross claims.
"To be entitled to 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 findin favor of the plaintiff and against the moving defendant" (Velez v Goldenberg, 29 AD3d780, 781 [2006]; see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]; Ryan v New York City Tr.Auth., 89 AD3d 1005, 1007 [2011]). "In considering the motion for judgmentas a matter of law, the trial court must afford the party opposing the motion everyinference which may properly be drawn from the facts presented, and the facts must beconsidered in a light most favorable to the nonmovant" (Szczerbiak v Pilat, 90NY2d at 556; see CentennialContrs. Enters. v East N.Y. Renovation Corp., 79 AD3d 690 [2010]). In makingthis determination, a court must not "engage in a weighing of the evidence," nor may itdirect a verdict where "the facts are in dispute, or where different inferences may bedrawn or the credibility of witnesses is in question" (Dolitsky v Bay Isle Oil Co.,111 AD2d 366, 366 [1985]; seeBrownrigg v New York City Hous. Auth., 70 AD3d 619 [2010]).
Here, viewing the evidence in the light most favorable to the non-moving parties,and giving them the benefit of all favorable inferences which could reasonably be drawnfrom the evidence, the trial court erred in granting Gori's motion for judgment as a matterof law dismissing the complaint and all cross claims insofar as asserted against her, andsua sponte finding that Ghazy and, hence, Eldib, were 100% at fault in the happening ofthe accident. Based on the evidence adduced at trial, a rational trier of fact couldconclude that Gori may have contributed to the happening of the accident. The disparityin the testimony of the plaintiff and Ghazy as to how this accident occurred presentedmaterial issues of fact and credibility that should have been resolved by the jury (seeDolitsky v Gitzler, 111 AD2d 366, 366 [1985]).
Accordingly, the trial court improperly granted Gori's motion pursuant to CPLR4401 for judgment as a matter of law, and improperly found, sua sponte, that Ghazy and,hence, Eldib, were 100% at fault. Accordingly, the matter must be remitted to theSupreme Court, Kings County, for a new trial on the issue of liability and, if warranted, atrial on the issue of damages.
Contrary to the contentions of Ghazy and Eldib, the Supreme Court properly denied[*3]their request for a missing witness charge withrespect to Gori, who was precluded by an earlier order from testifying at trial (see Bonomo v City of NewYork, 78 AD3d 1094 [2010]). Lott, J.P., Austin, Miller and Hinds-Radix, JJ.,concur.