Reilly v Watson

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[*1] Reilly v Watson 2005 NY Slip Op 51545(U) [9 Misc 3d 1114(A)] Decided on July 22, 2005 Supreme Court, Rockland County Weiner, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 22, 2005
Supreme Court, Rockland County

Mary Reilly and Michael Reilly, Plaintiffs,

against

Alan Watson, Defendant.



1992/03

Alfred J. Weiner, J.

Upon the foregoing papers, it is ORDERED that this motion is denied.

Plaintiffs seek to set aside the verdict in favor of defendant finding that defendant was not responsible for the automobile accident. Defendant opposes the application contending that the motion should be denied.

Plaintiff testified that she had been traveling southbound in the left lane on the Palisades Parkway. Suddenly, a wild turkey flew out of the bushes and hit her windshield, causing it to shatter. She put on her left-hand signal and began to slow down, intending to pull off the road onto the lefthand shoulder, when she was hit in the rear by defendant's motor vehicle. She did not see the defendant prior to the impact.

The defendant testified that the accident occurred during the morning rush hour. He was also going in a southerly direction in the left lane behind the plaintiff's vehicle, and there were no vehicles traveling between his vehicle and plaintiff's vehicle during this time. Shortly before the accident, he also saw something moving in the median on the left side of the roadway, and turned his head to see the cause of the movement. He then looked forward and saw plaintiff's automobile either slowing down or stopped. He applied his brakes, but could not avoid the accident.

The court, in its discretion, may set aside a jury verdict as against the weight of the evidence, if the court finds that the preponderance of the evidence in favor of the movant is so great that the jury could not have reached its conclusion on any fair interpretation of the evidence before it. Zweben v Casa, 17 AD3d 583 and Aprea v Franco, 292 AD2d 478.

However, as the court points out in Patti v Fenimore, "a trial court should exercise considerable caution in utilizing its discretionary power to set aside a jury verdict ..." Patti v. Fenimore, 181 AD2d 869. Furthermore, the determination of the jury which observed the witnesses and the evidence is entitled to a great deference. Hernandez v Carter and Parr Mobile, 224 AD2d 586.

Although a rear-end collision with a stopped or stopping vehicle generally creates a prima facie case of liability with respect to the operator of the rearmost vehicle, an inference of [*2]negligence can be rebutted by a non-negligent explanation for the collision such as mechanical failure, a sudden stop of the vehicle ahead, an unavoidable skidding on a wet pavement, or any other reasonable cause. Briceno v Milbry, 16 AD3d 448, Vlachos v Saueracker, 10 AD3d 683 and Power v Hupart, 260 AD2d 458.

In this matter, defendant did give a non-negligent explanation as to the reason why he rear-ended plaintiff's vehicle. Accordingly, the court finds that the plaintiffs have failed to prove, by a fair preponderance of the evidence, that the jury verdict in favor of defendant on the issue of liability could not have been reached based upon any fair interpretation of the evidence. Therefore, the motion is denied.

Dated: New City, New York

July 22, 2005______________

J. S. C.

To: Finkelstein & Partners

Boeggeman, George, Hodges & Corde, P.C.