| Clarke v Phillips |
| 2013 NY Slip Op 08585 [112 AD3d 872] |
| December 26, 2013 |
| Appellate Division, Second Department |
| Jellicoe Clarke, Appellant, v Derek J. Phillips,Respondent. |
—[*1] Keane Mathless & Bernheimer, PLLC, Hawthorne, N.Y. (Jason M. Bernheimer ofcounsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from (1) ajudgment of the Supreme Court, Dutchess County (Brands, J.) entered August 9, 2012,which, upon the denial of his motion pursuant to CPLR 4401 for judgment as a matter oflaw made at the close of evidence, and upon a jury verdict in favor of the defendant, is infavor of the defendant and against him dismissing the complaint, and (2) an order of thesame court dated November 19, 2012, which denied his motion pursuant to CPLR 4404(a) to set aside the verdict and for judgment as a matter of law on the issue of liability or,in the alternative, to set aside the verdict as contrary to the weight of the evidence and fora new trial.
Ordered that the judgment is reversed, on the law, the complaint is reinstated, theplaintiff's motion pursuant to CPLR 4401 for judgment as a matter of law is granted, andthe matter is remitted to the Supreme Court, Dutchess County, for a trial on the issue ofdamages and for an appropriate amended judgment thereafter; and it is further,
Ordered that the appeal from the order is dismissed as academic, in light of ourdetermination on the appeal from the judgment; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
This case involves a rear-end collision between two motor vehicles. At trial, theplaintiff testified that his vehicle was fully stopped at a red traffic light, that he remainedstopped even after the light turned green to let pedestrians finish crossing the street, andthat his vehicle was then struck in the rear by the defendant's vehicle. The defendanttestified that, prior to the accident, his vehicle was fully stopped behind the plaintiff'svehicle, and when the traffic light changed to green, the plaintiff's vehicle began to moveforward and the defendant, in turn, moved forward. As he began to move forward, thedefendant saw a group of pedestrians on the sidewalk to the right, and he turned his headto the right for a split second to make sure that no one darted out in front of him. Whenhe brought his attention back to the road ahead of him, he saw that the plaintiff's vehiclehad come to a stop because a pedestrian had run out in front of the plaintiff. Thedefendant could not stop his vehicle in time to avoid the accident.[*2]
The trial court denied the plaintiff's motionpursuant to CPLR 4401 for judgment as a matter of law made at the close of evidence.The jury found that the defendant was negligent, but that his negligence was not aproximate cause of the accident. A judgment was entered in favor of the defendant andagainst the plaintiff, dismissing the complaint. Thereafter, the trial court denied theplaintiff's subsequent motion pursuant to CPLR 4404 (a) to set aside the verdict and forjudgment as a matter of law on the issue of liability or, in the alternative, to set aside theverdict as contrary to the weight of the evidence and for a new trial.
"A trial court's grant of a CPLR 4401 motion for judgment as a matter of law isappropriate where the trial court finds that, upon the evidence presented, there is norational process by which the fact trier could base a finding in favor of the nonmovingparty" (Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]; see Miller v Bah, 74 AD3d761, 763 [2010]). "In considering the motion, the trial court must afford the partyopposing the motion every inference which may be properly drawn from the factspresented, and the facts must be considered in a light most favorable to the nonmovant"(Miller v Bah, 74 AD3d at 763).
" 'A rear-end collision with a stopped or stopping vehicle creates a prima facie caseof negligence with respect to the operator of the moving vehicle and imposes a duty onthat operator to rebut the inference of negligence by providing a nonnegligentexplanation for the collision' " (Gutierrez v Trillium USA, LLC, 111 AD3d 669 [2013],quoting Pollard v IndependentBeauty & Barber Supply Co., 94 AD3d 845, 845-846 [2012]; see Tutrani v County ofSuffolk, 10 NY3d 906, 908 [2008]; cf. Delvalle v Mercedes Benz USA,LLC, 94 AD3d 942 [2012]). Moreover, although the issue of comparative faultgenerally presents a question of fact (see Regans v Baratta, 106 AD3d 893, 894 [2013]), thatissue should be submitted to a jury "only where there is a triable issue of fact as towhether the frontmost driver also operated his or her vehicle in a negligent manner" (Gutierrez v Trillium USA,LLC, 111 AD3d 669, 671 [2013]; cf. Gaeta v Carter, 6 AD3d 576, 577 [2004]).
Here, viewing the evidence in the light most favorable to the defendant, there is norational process by which the jury could find that the defendant had a nonnegligentexplanation for the accident, or that the plaintiff was, to any extent, at fault in thehappening of the accident. By the defendant's own admission, the accident occurredbecause the defendant took his eyes off the road when he turned his head to the right tolook at the pedestrians, and when he looked back in the direction he was traveling, hesaw the plaintiff's vehicle already stopped in front of him and did not have time to stophis vehicle in order to avoid the collision. The defendant further testified that the reasonthe plaintiff's vehicle was stopped was that a pedestrian had run in front of the plaintiff.Thus, the accident was attributable to the defendant's own inattentiveness in taking hiseyes off the road in front of him, and not to any negligence on the part of the plaintiff (see Giangrasso v Callahan, 87AD3d 521 [2011]).
Accordingly, the Supreme Court should have granted the plaintiff's motion pursuantto CPLR 4401 for judgment as a matter of law made at the close of evidence.
In light of our determination, the parties' remaining contentions need not beaddressed. Dillon, J.P., Angiolillo, Dickerson and Cohen, JJ., concur.