Panish v Sanchez

[*1] Panish v Sanchez 2009 NY Slip Op 51105(U) [23 Misc 3d 1135(A)] Decided on June 8, 2009 Civil Court Of The City Of New York, Kings County Sweeney, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 8, 2009
Civil Court of the City of New York, Kings County

Geraldine Panish, Plaintiffs,

against

Baldemar G. Sanchez and Corporate Transportation Group, Ltd., Defendants.



000569/2008



Plaintiff's Counsel of Record:

Kieth Devries

Attorney at Law

42 Broadway, Suite 1942

New York, NY 10004

Tel: (212) 227-0780

Defendants' Counsel of Record:

Baker, Mc Evoy, Morrissey & Moskovits, P.C.

330 West 34th Street

New York, NY 10001

Tel.: (212) 857-8200

Annalise F. Cottone, Esq., Of Counsel,

[Trial Counsel and on Plaintiff's Motion

to Set Aside Jury Verdict and for Directed

Verdict or for new trial]

Tel.: (718) 998-0714

Peter P. Sweeney, J.

In this action to recover damages for personal injuries, plaintiff moves pursuant to CPLR 4404(a) for an order granting judgment on liability notwithstanding the jury's verdict, or in the alternative, setting aside the jury's verdict as against the weight of the evidence and directing a new trial.

Plaintiff Geraldine Panish commenced this action claiming that on March 2, 2005, while crossing East 37th Street in a cross-walk on west side of First Avenue in Manhattan, defendant Baldemar G. Sanchez ran over her foot while making a left turn. At trial, plaintiff testified that at the time of the accident, she was walking in a northerly direction along First Avenue. When she [*2]reached 37th Street, the pedestrian signal controlling pedestrian traffic across 37th Street was green. She looked to her right and when she saw no cars coming down First Avenue towards the intersection, she proceeded to cross the street in the cross-walk. She testified that after she had taken about five or six steps, walking between one-quarter or one-third of the way across the street, her foot was run over by the defendant's vehicle. Even though she jogged about three times a week and was wearing jogging shoes and running-type clothes, she maintained that she was walking at a moderate pace.

Defendant Sanchez testified that as he was making a left turn onto 37th Street from First Avenue, he heard a noise emanate from the driver's side of his vehicle and observed that his left side-view mirror had been pushed inward. He brought his vehicle to a stop believing that it had made contract with someone. He maintained, however, that "as I turn my straight to left to 37th Street there was nobody in front of me." He further maintained that the plaintiff "hit me on the side of the car on the mirror." When asked whether he saw any pedestrians in the area as he was proceeding through the cross-walk, he responded, "I saw, I saw her like because I turn my face a lot. . . . I turn my face as I saw her like on the curb, she was not in the middle of the street. She was no where near the middle, she was on the curb on the left, on the south, southwest corner of 37th Street and First Avenue."

After a unified trial, the jury returned a unanimous verdict finding that defendant Sanchez was not negligent. Plaintiff immediately moved for judgment in her favor on liability notwithstanding the jury's verdict and in the alternative, for an order setting aside the verdict as against the weight of the evidence and for a new trial. The parties subsequently submitted papers supporting their respective positions.

On a post verdict motion for judgment as a matter of law (see, CPLR 4404[a]), the trial court must determine from the evidence presented at trial whether any rational basis exists for the conclusion on liability reached by the jury ( Cohen v. Hallmark Cards, 45 NY2d 493, 499 [1978] ). There must be "simply no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial" ( id., see also Mirand v. City of New York, 84 NY2d 44, 48-49 [1994] ).

"[A] jury verdict should not be set aside as against the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence" ( Exarhouleas v. Green 317 Madison, LLC, 46 AD3d 854, 855 [2nd Dept, 2007] ). "[I]t is for the jury to make determinations as to the credibility of the witnesses, and great deference in this regard is accorded to the jury, which had the opportunity to see and hear the witnesses" ( id.). The "discretionary power to set aside a jury verdict and order a new trial must be exercised with considerable caution, for in the absence of indications that substantial justice has not been done, a successful litigant is entitled to the benefits of a favorable jury verdict" (Nicastro v. Park, 113 AD2d 129, 133 [2nd Dept, 1985]).

Here, contrary to plaintiff's contention, there was a rational basis for the jury's verdict and [*3]it was supported by a fair interpretation of the evidence adduced at trial. The jury could have reasonably inferred that when defendant commenced his left turn, plaintiff was standing on the sidewalk of southwest corner of the intersection and that as Sanchez was completing his turn, she either walked or ran into the driver's side of his car. If the jury accepted these facts, they could have reasonably found that it would have been impossible for the defendant to yield to her the right of way (34 RCNY 4-04(2)(b) ["No pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the operator to yield"] ). The jury could have therefore concluded that defendant was not negligent and that plaintiff's own negligence was the sole proximate cause of the accident. Thus, the verdict was not against the weight of the evidence.

Accordingly, it is hereby

ORDERED that plaintiff's motion is DENIED in its entirety.

This constitutes the decision and order of the court.

Dated: June 8, 2009____________________________

PETER P. SWEENEY

Civil Court Judge