Agui v Fernandez

[*1] Agui v Fernandez 2012 NY Slip Op 51090(U) Decided on June 15, 2012 Supreme Court, Kings County Schack, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 15, 2012
Supreme Court, Kings County

Miguel Agui, Plaintiff,

against

Adrian E. Fernandez and Maurcio Martinez, Defendants.



13372/09



Appearances:

Plaintiff

Bruce S. Reznick, PC

of counsel, Edward M. Rappaport, Esq.

Brooklyn NY

Defendant:

Lisa De Lindsay, Esq.

Faust Goetz Schenker & Blee

NY NY

Arthur M. Schack, J.

The following papers numbered 1 to 2 read on this motion:Papers Numbered:

Notice of Motion/Affidavits (Affirmations) Annexed1 [*2]

Affirmation in Opposition _________________________2

________________________________________________________________________

Plaintiff MIGUEL AGUI (AGUI) moves, in this pedestrian knockdown action, pursuant to CPLR Rule 4404 (a), to set aside the June 3, 2011-jury verdict on liability in favor of defendants ADRIAN E. FERNANDEZ (FERNANDEZ) and MAURCIO

MARTINEZ (MARTINEZ) as contrary to the weight of the evidence and seeks a new trial.

The Court finds that the June 3, 2011-jury verdict on liability in the instant action is contrary to the weight of the evidence for the reasons to be explained. Therefore, the June 3, 2011-jury verdict on liability is set aside and a new trial is ordered.

Background

Plaintiff AGUI, a pedestrian, was involved in an accident with the motor vehicle owned by defendant FERNANDEZ, who was not present at the accident, and operated by defendant MARTINEZ, on April 23, 2009, at about 8:45 A.M., at the intersection of 81st Street and 17th Avenue, Brooklyn, New York. Plaintiff AGUI testified at trial that he was crossing 17th Avenue westbound in a marked crosswalk when defendants' motor vehicle, traveling eastbound on 81th Street made a left turn onto 17th Avenue and struck him. Moreover, plaintiff AGUI testified that when he got to the corner the traffic light was green for traffic on 17th Avenue and that the "DON'T WALK" sign was flashing. After waiting for the light to change, the "WALK" sign appeared and plaintiff AGUI started to cross 17th Avenue. Defendant MARTINEZ testified that he made a left turn onto 17th Avenue and heard a bump on the right side of his car. Further, he testified several times at trial that he never saw plaintiff AGUI prior to hearing the bump on the right side of his car, as well as in testifying to this in portions of his February 10, 2010 examination before trial, which plaintiff's counsel read into the record as part of his direct case. However, the jury found for defendants on liability by answering "No" to the first question on the verdict sheet, "Were the defendants ADRIAN E. FERNANDEZ and MAURICIO MARTINEZ negligent."

At trial, plaintiff's counsel read to the jury the following, from p. 22 of defendant MARTINEZ'S February 10, 2010 deposition, at trial transcript p. 34, line 3 - p. 36, line 2:

Q."Did you intend to go straight at that intersection or make a turn?

A.No, make a turn.

Q.Right or left?

A.Left."

Line 11:

Q."While you were stopped, did you look to see whether there were

any pedestrians waiting to cross the street?

A.Yes.

Q.Did you see any?

A.Nobody."

Page 24, Line 6:

Q."So after ten seconds the light changed to green?

A.Yes.

Q.Did you start to make your left turn?

A.Yes. [*3]

Q.When the light changed, did you see any pedestrians?

A.No.

Q.How far through the turn did you get before an accident happened?

A.I crossed the white lines, passed the lines.

Q.Were there marked crosswalks at that intersection?

A.I think it's a white line."

Page 27, Line 3, Judge:

Q."When you started to turn left, where were you looking?

A.I looked to see if I saw any pedestrians or cars. I was looking

from the left.

Q.Did you see any pedestrians or cars.

A.No.

Q.Did you have an accident that day?

A.Yes."

THE COURT: The question is, "Did you have an accident with a

pedestrian?"

MR. RAPPAPORT [plaintiff's counsel]: No, I skipped that one

because there was no response.

THE COURT: Okay, so you went to Line 11.

MR. RAPPAPORT: Line 11:

Q."Did you have an accident that day?

A.Yes.

Q.Was that with a pedestrian?

A.Yeah.

Q.Did you see him before the accident occurred?

A.No." [Emphasis added]

In defendant MARTINEZ's direct case, defendant Martinez testified, as follows, at p. 87, line 23 - p. 88, line 5:

Q.Did you ever see the plaintiff before the accident happened?

A.No.

Q.Were you looking straight ahead?

A.Yes. [Emphasis added]

Then, defendant MARTINEZ testified at p. 88, lines 19 - 21:

THE COURT: You didn't see him? Yes or no, did you see him?

A.No, sir. [Emphasis added]

Moreover, defendant MARTINEZ testified at p. 90, line 25 - p.91, line 4: Q.You didn't see him?

A.I didn't see him.

Q.And you were looking in front?

A.I was looking in front and my turn light was on and I didn't

see anything. [Emphasis added] Then, defendant MARTINEZ testified at p. 91, lines 12 - 15:[*4]

Q.Did you see anybody there?

A.I don't see anybody. I didn't see anybody.

Q.And you looked?

A.I was looking around. [Emphasis added] On plaintiff's cross-examination of defendant MARTINEZ, defendant MARTINEZ testified at p. 96, lines 7 - 9:

Q.Now, as you made the turn it's your testimony you didn't

see anything?

A.Yes. [Emphasis added] Further, defendant MARTINEZ testified at p. 98, line 17 - p. 99, line 5:

Q.Now the bump you say that you heard was near your right

front tire; is that right?

A.On the side of the car.

Q.On the side near the right front tire; is that right?

A.Yes.

Q.So therefore, your right front tire would be where this "X" is;

is that right?

A.No, that's where I heard the bump.

Q.That's what I am saying. So you heard the bump. That means

that the bump took place where the "X" is no?

A.Yes.

Q.You also testified right after the bump you stopped, didn't

you testify to that?

A.Yes.

Then, defendant MARTINEZ testified at p. 100, lines 17 - 21:

Q.Would you agree that when you stopped your van that part of

your van was still in the crosswalk?

A.Yes, sir.

Q.Now, you got out of the van, right?

A.Yes.

Also, defendant MARTINEZ testified at p. 112, lines 17 - 19:

Q.The first knowledge you had of this accident was when you

felt a bump; is that right?

A.Yes, sir.

Therefore, the jury's verdict on liability in the instant actions is clearly against the weight of the evidence and is vacated. The Court, in Barbieri v Vokoun (72 AD3d 853, 856 [2d Dept 2010]), instructed:The defendant has a statutory duty to use due care to avoid colliding with pedestrians on the roadway (see Vehicle and Traffic Law § 1146), as

well as a common-law duty to see that which he should have seen

through the proper use of his senses (see Domanova v State of New [*5]

York, 41 AD3d 633, 634 [2d Dept 2006]; Larsen v Spano, 35 AD3d

820 [2d Dept 2006]) . . . Under these circumstances, the verdict could

not have been reached on any fair interpretation of the evidence.

Discussion

The power of the court to set aside a jury verdict and order a new trial is

discretionary. It is codified in CPLR § 4404 (a), which states:

Motion after trial where jury required. After a trial of a cause

of action or issue triable of right by a jury, upon the motion of any party

or on its own initiative, the court may set aside a verdict or any judgment

entered thereon and direct that judgment be entered in favor of a party

entitled to judgment as a matter of law or it may order a new trial of a

cause of action or separable issue where the verdict is contrary to the

weight of the evidence, in the interest of justice or where the jury

cannot agree after being kept together for as long as is deemed

reasonable by the court. This broad power is invoked only when the jury verdict is against the weight of the

evidence. The Court, in Cohen v Hallmark Cards, Inc. (45 NY2d 493, 499 [1978]), instructed that, "the question whether a verdict is against the weight of the evidence involves what is in large part a discretionary balancing of many factors (see Mann v Hunt, 283 App Div 140 [3d Dept 1953])." The Appellate Division, Second Department, in applying the Cohen v Hallmark Cards, Inc. standard in Nicastro v Park (113 AD2d 129, 133 [2d Dept 1985]), held:

The fact that determination of a motion to set aside a verdict

involves judicial discretion does not imply, however, that the trial

court can freely interfere with any verdict that is unsatisfactory or with

which it disagrees. A preeminent principle of jurisprudence in this

area is that 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.

Fact-finding is the province of the jury, not the trial court, and a court

must act warily lest overzealous enforcement of its duty to oversee the

proper administration of justice leads it to overstep its bounds and [*6]

"unnecessarily interfere with the fact-finding function of the jury to a

degree that amounts to an usurpation of the jury's duty" [citations

omitted]. This is especially true if a verdict is contested solely on

weight of the evidence grounds and interest of justice factors have not intervened to flavor the judicial response to the motion. Absent

such complications, the challenge is directed squarely at the accuracy

of the jury's fact-finding and must be viewed in that light. [Emphasis

added]

(See Acosta v City of New York, 84 AD3d 706 [2d Dept 2011]; Jordan v Port Authority of New York and New Jersey, 82 AD3d 936 [2d Dept 2011]; Carrara v Kelly, 74 AD3d 719 [2d Dept 2010]; Hammond v Diaz, 82 AD3d 839 [2d Dept 2011]; Alli v Lucas, 72 AD3d 994 [2d Dept 2010]; Barbieri v Voukon, supra).

Further, the Court is mindful of the admonition in Shaw v Board of Educ. of City of New York (5 AD3d 468 [2d Dept 2004]), that a "jury verdict is entitled to great deference and should be set aside as against the weight of the evidence only when it could not have been reached on any fair interpretation of the evidence." (See Delva v New York City

Transit Authority, 85 AD3d 712 [2d Dept 2011]; Gaudiello v City of New York, 80 AD3d

726 [2d Dept 2010]; Piatek v New York City Transit Authority, 14 AD2d 685 [2d Dept 2005]). However, the Court in Barbieri v Voukon at 72 AD3d 855, instructed:

[w]hile great deference must be accorded to fact-finding function of

the jury, a trial court's discretion to set aside the verdict "is at its

broadest when it appears that the unsuccessful litigant's evidentiary

position was particularly strong compared to that of the victor"

(Pire v Otero, 123 AD2d 611 [2d Dept 1986], quoting Nicastro v

Park, 113 AD2d at 136; see Panariello v Ballinger, 248 AD2d 452

[2d Dept 1998]).

(See Jordan v Port Authority of New York and New Jersey, supra).

Recent Appellate Division, Second Department, decisions in Barbieri v Voukon, supra and Martinez v Kreychmar, 84 AD3d 1037 [2d Dept 2011] are both determinate of the issues in the instant action. In Barbieri v Voukon, plaintiff pedestrian was pushing a shopping cart across a street when she was struck by the left-turning defendant's vehicle.

Plaintiff testified that she waited for the light to turn green while on the sidewalk at an intersection. When the light turned green, she proceeded to walk across the street. After plaintiff took about five steps the front of defendant's vehicle struck her shopping cart [*7]

and her. Defendant testified that he saw plaintiff on the sidewalk with her shopping cart, but acknowledged that as he executed his left turn he did not keep plaintiff under observation. Further, he only realized that he had an accident after hearing the sound of metal coming into contact with the rubber wheels of plaintiff's shopping cart and observing plaintiff lying in the street. The jury returned a liability verdict for defendant and the trial judge set aside the verdict as contrary to the weight of the evidence. The Appellate Division, Second Department, in affirming the setting aside of the verdict, held at 855 - 856:

Here, no fair interpretation of the evidence supports a finding that

the defendant was entirely free of negligence in the happening of

this accident. Although a driver facing a steady green light is entitled

to proceed, he or she has a duty to yield the right-of-way to pedestrians

lawfully within a crosswalk (see Vehicle and Traffic Law § 1111 [a]

[1]) . . . While the defendant claimed that the impact occurred right

before his vehicle entered the crosswalk, this claim was inconsistent

with his admission that upon arriving at the intersection he observed

the plaintiff standing at the corner next to the pedestrian signal button.

From this location, the plaintiff would have been within the crosswalk

when she stepped off the sidewalk into the street. The defendant's

claim that the impact occurred just before his vehicle entered the

crosswalk is also inconsistent with the fact that he was already in the

process of executing a left turn onto Prospect Avenue when his vehicle

came into contact with the plaintiff and her shopping cart . . . Since a

violation of a standard of care imposed by the Vehicle and Traffic Law

constitutes negligence per se [citations omitted], the jury verdict

completely absolving the defendant of any responsibility for the

accident was contrary to the weight of the evidence [citations omitted].

The Court, in Martinez v Kreychmar, 84 AD3d at 1038, held that plaintiff in support of her motion for summary judgment:

demonstrated that she was walking within a crosswalk, with the

pedestrian signal in her favor, when the defendant's car failed to

yield the right-of-way and struck her at a high rate of speed. The

plaintiff further demonstrated that, exercising due care, she had

looked in all directions to check for approaching vehicles before she

entered the intersection. Contrary to the Supreme Court's conclusion, [*8]

this proof was sufficient to establish the plaintiff's prima facie entitlement

to judgment as a matter of law on the issue of liability, including her

freedom from comparative fault

(See Buchinger v Jazz Leasing Corp., 95 AD3d 1053 [2d Dept 2012]; Cuevas v Chavez, 94 AD3d 803 [2d Dept 2012]; Arazashvilli v Executive Fleet Management Corp. 90 AD3d 682 [2d Dept 2011]; Benedikt v Certified Lumber Corp., 60 AD3d 798 [2d Dept 2009]).

In the instant case, it is clear that defendant MARTINEZ is negligent, as a matter of law, because "an accident occurs because he or she failed to see that which through the proper use of his or her senses he or she should have seen." (Katanov v County of Nassau, 91 AD3d 723, 725 [2d Dept 2012]). (See Weigand v United Traction Co., 221 NY 39, 42 [1917]; Heath v Liberato, 82 AD3d 841 [2d Dept 2011]; Kucar v Town of Huntington, 81 AD3d 784, 785 [2d Dept 2011]). Defendant MARTINEZ's failure to see what there was to be seen, including pedestrian plaintiff AGUI in a marked crosswalk, mandates setting aside the jury verdict in favor of defendant MARTINEZ.

Sulamain v Thomas, 54 AD3d 751 [2d Dept 2008] has a fact pattern similar to that of the instant action. Plaintiff stated in his affidavit, in support of his motion for partial summary judgment on liability, that he was crossing the street in the crosswalk with the light in his favor when defendant's vehicle struck him while turning through the crosswalk. As in the instant action, the police report about the accident contained defendant's admission that he didn't see the injured plaintiff. The Appellate Division, Second Department, in affirming the granting of partial summary judgment on liability, held at 752, that "plaintiffs made a prima facie showing of entitlement to judgment as a matter law."

Zabusky v Cochran, 234 AD2d 542 [2d Dept 2008] is another case similar to the instant case. The Appellate Division, Second Department, reversed the Supreme Court and granted plaintiff partial summary judgment on liability, holding at 542:

The plaintiff Rochelle Zabusky was crossing a street when she

was struck by a vehicle driven by the defendant Dana Cochran. There

is no dispute that Zabusky was walking within the crosswalk and that

the light was in her favor. The defendant driver admitted at her

deposition that she struck the plaintiff while attempting to make a

left hand turn and that her view of the crosswalk was unobstructed.

The evidence submitted by the plaintiffs was sufficient to

establish their entitlement to summary judgment on the issue of liability.

(See Ricci v Lo, ___ AD3d ___, 2012 NY Slip Op 03429 [2d Dept May 1, 2012]; Kusz v New York City Transit Authority, 88 AD3d 768 [2d Dept 2011]; Benedikt v Certified Lumber Corp, supra; Rosenblatt v Venizelos, 49 AD3d 519 [2d Dept 2008]).

Additionally, defendant MARTINEZ is negligent as a matter of law for his failure

to: obey traffic control devices and not yield the right of way to plaintiff AGUI, who was in a [*9]marked crosswalk; act with due care to avoid a collision with a pedestrian; move his stopped vehicle with reasonable safety; and, make a left turn with reasonable safety. The evidence sets forth defendant MARTINEZ's negligence because defendant MARTINEZ failed to see what was there to be seen when he struck plaintiff AGUI, who was in a crosswalk with the right of way, when defendant MARTINEZ made his unauthorized left turn. (See Elliott v City of New York, 95 NY2d 730, 734 [2001]; Martin v Herzog, 228 NY 164, 169 [1920]; Vehicle and Traffic Law (VTL) § § 1110 [a], 1111 [a] [1], 1146, 1162 and 1163 [a]). VTL § 1110 (a), dealing with obedience to traffic control devices, provides:

[e]very person shall obey the instructions of any official traffic-control

device applicable to him placed in accordance with the provisions of

this chapter, unless otherwise directed by a traffic or police officer,

subject to the exceptions granted the driver of an authorized emergency

vehicle in this title.

VTL § 1111 (a) (1), dealing with green traffic-control signal indications, provides: [t]raffic, except pedestrians, facing a steady circular green signal

may proceed straight through or turn right or left unless a sign at

such place prohibits either such turn. Such traffic, including when

turning right or left, shall yield the right of way to other traffic lawfully

within the intersection or an adjacent crosswalk at the time such signal

is exhibited.

VTL § 1146, dealing with drivers using due care, provides:

[n]otwithstanding the provisions of any other law to the contrary, every driver of a vehicle shall exercise due care to avoid colliding with any . . . pedestrian . . . upon any roadway and shall give warning by sounding the horn when necessary.

VTL § 1162, dealing with starting parked vehicles, provides:

[n]o person shall move a vehicle which is stopped, standing, or parked

unless and until such movement can be made with reasonable safety.

Finally, VTL § 1163 (a), dealing with turning movements by driver, provides:

"[n]o person shall turn a vehicle at an intersection unless the vehicle

is in proper position upon the roadway . . . or otherwise turn a vehicle

from a direct course or move right or left upon a roadway unless and

until such movement can be made with reasonable safety.

Clearly, in the instant action, the jury verdict on liability is against the weight of the evidence. The verdict is vacated and a new trial is ordered.

Conclusion

[*10]Accordingly, it is

ORDERED, that the motion of plaintiff MIGUEL AGUI, pursuant to CPLR Rule 4404 (a), to set aside the June 3, 2011-jury verdict on liability in favor of defendants ADRIAN E. FERNANDEZ and MAURCIO MARTINEZ as contrary to the weight of the evidence and seeking a new trial, is granted; and it is further

ORDERED, that the parties shall appear in Part 27, Room 479, on July 31, 2012,

at 10:00 A.M., for jury selection.

This constitutes the Decision and Order of the Court.

ENTER

___________________________

HON. ARTHUR M. SCHACKJ. S. C.