Goddard v Balgahoom

[*1] Goddard v Balgahoom 2009 NY Slip Op 51201(U) [23 Misc 3d 1139(A)] Decided on June 9, 2009 Civil Court Of 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 9, 2009
Civil Court of City of New York, Kings County

Cecil Goddard, Plaintiffs,

against

Badar A. Balgahoom, Khadafi B. Balgahoom, Michael Ekeijeh, and James Eke-Ijeh, Defendants.



000538/2008



Plaintiff's Counsel :

Law Offices of Marius C. Wesser, P.C.

Marius C. Wesser, Esq., Trial Counsel and on Motion

323 Washington Avenue, 2nd Floor

Brooklyn, NY 11205

Tel: (718) 230-8080

Defendants-Movants' Counsel of Record:

Robert P. Tusa Law Offices

1 Metro Tech Center, 19th Floor

Brooklyn, NY 11201-3831

Tel.: (718) 250-0400

James Rogers, Esq., Associate Counsel,

[Trial Counsel and on Motion

to Set Aside Jury Verdict and for Directed

Verdict]

Defendants-Respondents' Counsel of Record:

Cruz & Gangi, and Associates

110 William Street, 19th Floor

New York, NY 10038

Peter P. Sweeney, J.

In this personal injury action arising out of a motor vehicle accident, defendants Badar Balgahoom and Khadafi Balgahoom move pursuant to CPLR § 4404 to set aside the jury verdict, for a directed verdict, or alternatively for a new trial. [*2]

Plaintiff Cecil Goddard commenced this action claiming that he was injured on August 17, 2005 as a result of a two-car accident that occurred at the intersection of East 21st Street and Dorchester Road, in Brooklyn. He was riding as a passenger in a vehicle owned by defendant Michael Ekeijeh and operated by defendant James Eke-Ijeh when said vehicle was struck by a vehicle owned by defendant Badar Balgahoom and operated by defendant Khadafi Balgahoom. The Ekeijeh vehicle was traveling on East 21st Street, a one-way-street, which was controlled by a stop sign at the Dorchester Road intersection; the Balgahoom vehicle was traveling on Dorchester Road, also a one-way street, with the right of way at the East 21st Street intersection.

At trial, defendant James Eke-Ijeh testified that he brought his vehicle to a complete stop at the stop sign, looked right down Dorchester Road and observed that no cars were approaching the intersection from that direction. When he looked right, he was able to see all the way to Flatbush Avenue, which was a short block away. He maintained that after he made sure it was safe to proceed, he slowly crossed the intersection. When the front of his vehicle had almost cleared the intersection, his vehicle was struck on the passenger side towards the rear by the Balgahoom vehicle. James Eke-Ijeh did not see the Balgahoom vehicle prior to impact.

Defendant Balgahoom testified that he was traveling along Dorchester Road with the right of way at a speed of 15 mph. Moments before the collision, he observed the Ekeijeh vehicle entering the intersection from East 21st Street. He applied his brakes, turned the steering wheel but was unable to avoid the collision. He maintained that his vehicle struck the Ekeijeh vehicle towards the middle on its passenger side.

Plaintiff testified that when he saw the Balgahoom vehicle just prior to the accident, it was traveling at a high rate of speed. He maintained that the Balgahoom vehicle collided towards the middle of the passenger side of the car in which he was a passenger.

At the conclusion plaintiff's case, the attorney for the Balgahoom defendants moved for a directed verdict on the grounds that plaintiff's evidence had failed to establish a prima facie case of liability against his clients and on the ground that the evidence adduced established that the negligence of defendant James Eke-Ijeh was the sole proximate cause of the accident. The court reserved decision. The attorney for the Balgahoom defendants renewed the motion for a directed version at the close of evidence, and again the Court reserved decision.

The jury returned a verdict finding that defendant James Eke-Ijeh and defendant Khadafi Balgahoom were both negligent, but that only defendant Balgahoom's negligence was a proximate cause of the accident.

A jury verdict should not be set aside as against the weight of the evidence unless the verdict could not have been reached upon any fair interpretation of the evidence ( see Aprea v. Franco, 292 AD2d 478, [2nd Dept, 2002]; Nicastro v. Park, 113 AD2d 129 [2nd Dept, 1985]). Here, the trial evidence established that defendant James Eke-Ijeh was negligent as a matter of law by proceeding into the intersection without yielding the right of way to the Balgahoom vehicle, in violation of Vehicle and Traffic Law § 1142(a) ( see Gorelik v. Laidlaw Tr., Inc., 50 AD3d 739 [2nd Dept, 2008]; Maliza v. Puerto-Rican Transp. Corp., 50 AD3d 650, 651 [2nd Dept, 2008]; Exime v. Williams, 45 AD3d 633, 634 [2nd Dept, 2007]; Gergis v. Miccio, 39 AD3d 468, 468-469 [2nd Dept, 2007]). "A jury's finding that a party was at fault but that [such] fault was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find [*3]negligence without also finding proximate cause" ( Misa v. Filancia, 2 AD3d 810, 811 [2nd Dept, 2003]). Based on the trial evidence, there was no valid line of reasoning or permissible inferences that could have led a rational jury to conclude that defendant James Eke-Ijeh's violation of Vehicle and Traffic Law § 1142(a) was not a proximate cause of the accident (see Cartica v. Kieltyka, 55 AD3d 523, 524 [2nd Dept, 2008]; Garrett v. Manaser, 8 AD3d 616, 617 [2nd Dept, 2004]).

Further, no evidence was presented at trial from which a jury could infer that defendant Balgahoom was negligent. The court rejects plaintiff's contention that it is possible that the jury had concluded that the Balgahoom vehicle was speeding. The only evidence introduced at trial concerning the speed of the Balgahoom vehicle was defendant Balgahoom's testimony that he was traveling at 15 mph and plaintiff's testimony that he briefly observed the Balgahoom car traveling at a high rate of speed only moments before the impact. The court finds that plaintiff's testimony was conclusory, speculative and unsupported by other evidence, and that it does not justify a finding of negligence against the operator of the Balgahoom vehicle ( see Batts v. Page, 51 AD3d 833, 834 [2nd Dept, 2008] [plaintiff's statement that defendant driver was traveling at a "horrific excessive speed" was insufficient to establish a triable issue of fact]; see also McNamara v. Fishkowitz, 18 AD3d 721, 722 [2nd Dept, 2005]; Ishak v. Guzman, 12 AD3d 409 [2nd Dept, 2004]).

For all of the above reasons, it is hereby

ORDERED that defendants' motion to set aside the verdict is GRANTED in all respects; and it is further

ORDERED that defendants' motion for a directed verdict of no liability against them and a finding of negligence and proximate cause against the defendants James Eke-Ijeh and Michael Ekeijeh is GRANTED; and it is further

ORDERED that the motion is in all other respects DENIED.

The attorneys for the plaintiff and the defendants James Eke-Ijeh and Michael Ekeijeh are directed to appear in Trial I on September 14, 2009 to commence jury selection for the damages trial.

This constitutes the decision and order of the court.

Dated: June 9, 2009______________________________

PETER P. SWEENEY

Civil Court Judge