Heller v Shaddad
Decided on July 14, 2008
Supreme Court, New York County
Rosalie Heller, Plaintiff,
Abdel Hafize Shaddad, Defendants.
John W. Dunne, Esq.
Kelleher & Dunne, LLP
17 Battery Pl.11th Floor
New York, NY 10004
Thomas P. Murphy, Esq.
Philip J. Rizzuto, P.C.
One Old Country Road Suite 285
Carle Place, NY 11514
Louis B. York, J.
This is a motion for judgment NOV or to set aside a jury verdict determining that although
the defendant was negligent, its negligence was not a substantial factor in causing plaintiff's
injuries. This judge, having presided throughout the trial, concludes that no reasonable jury could
have concluded from the evidence before it that the defendant was not the cause of the
There has been no challenge to the jury's finding that the defendant was negligent. That conclusion was reached by virtue of evidence showing that the plaintiff driving at a high speed at the corner of Central Park West and 66 th Street sped into Central Park West and turning north while plaintiff was crossing to the western side of that corner. Defendant taxi driver testified that he stopped short and plaintiff fell to the pavement [*2]without any impact with his taxi. Plaintiff contends that he hit her with such impact that her bag and her shoes went flying as she was propelled to the ground.
Defendant testified that there were no cars in front of him and no cars passed him from behind. She just lost her balance, he contends. Defendant also testified that he and his passengers retrieved plaintiff's bag and shoes which had flown off of her, and that after dropping off his passengers, he drove plaintiff home where the police and an EMS ambulance was waiting for her.
The passenger in the car that had been cut off testified that he saw the defendant's car hit her, at which time he called 911. He unequivocally stated that a pedestrian was hit by a taxi. The witness' wife also testified that although she did not actually see the cab hit plaintiff, she unmistakenly heard a thud that could only have been caused by the impact of an automobile. There was no evidence of any potholes or other debris that might have caused plaintiff to fall.
Defendant's doctor, a neurologist, admitted that he had no experience with orthopedic injuries such as those suffered by plaintiff, but opined, nevertheless that her injuries could have occurred from a fall in the street. He did not challenge, however, that she incurred serious injuries.
Plaintiff's expert doctor, a board certified orthopedic surgeon, testified to a great deal of
experience with the type of injuries that plaintiff incurred. She was in the hospital for five days
with a three-part fracture, dislocation of the left shoulder and nerve damage. She had surgery
consisting of bone grafts and the insertion of pins. She underwent physical therapy. Her shoulder,
hand and fingers were immobilized. This expert witness testified that such serious injuries could
only have been caused by the impact of an automobile. Her shoulder dislocation, he stated, could
be caused by a fall but such a fall could not have caused her complex fracture. Also, in evidence
was the tape of the 911 call , which clearly stated that the plaintiff was hit by a taxi.
It does not take a rocket scientist to conclude that the only logical conclusion the jury could have reached was that the defendant's negligence substantially caused plaintiff's injuries. The parties are reminded that the trial judge is given great deference in the evaluation of the evidence. This judge's common sense, 44 years' experience as a lawyer and a judge and sense of fairness quality him to judge the reasonableness of this jury's determination (Metcalf v Michle, 39, NY2d 370, 384 NYS2d 115 ). In setting aside the verdict on proximate cause and remanding this matter for a trial on damages stemming from plaintiff's impact with defendant's taxi, the Court finds itself on solid ground. A recent First Department decision remanded a no-fault case jury verdict where the verdict concluded that there was negligence but not a serious injury. The Court sent the case back for a determination of the issue of a serious injury (Young v Gould, 29 AD2d 287, 748 NYS2d 745 [1st Dept 2002]). In Petroni v Grisi, 155 AD2d 366, 547 NYS2d 641 [1st Dept 1989]) where the jury found negligence and a serious injury but not [*3]a proximate cause, the Court remanded for a new trial on damages. See, also, Garrett v Menaser, 8AD 3d 661, 779 NYS2d 565 [2d Dept 2004], where the defendant was found negligent for failing to yield the right of way after he failed to adequately stop at the stop sign while having a clear view of oncoming traffic. The Court remanded the jury's negative finding on proximate cause because no fair interpretation of the evidence could have caused a rational jury from finding a proximate cause. The decision in Walsh v Morris, 88AD 2d 673, 450 NYS2d 920 [3d Dept 1982] in embracing the notion of deference to the trial judge's discretion and, once again, remanding because no fair interpretation of the facts could have decided otherwise, illustrates the overwhelming authority in support of this decision (after taking her eyes off the road momentarily, defendant found herself so close to plaintiff's vehicle as plaintiff slowed down to make a turn that defendant was unable to avoid a rear-end collision.)
Accordingly, it is
ORDERED that the jury determination of negligence remains in effect; and it is further
ORDERED that the verdict on damages is set aside and a new trial on damages shall be held; and it is further
ORDERED that plaintiff shall file a copy of this decision with the Clerk of Trial
Support who is directed to restore this matter to the trial calendar for a determination on damages
under the action's original calendar number.
Louis B. York, J.S.C.