Carr v Ruffino

[*1] Carr v Ruffino 2005 NY Slip Op 50071(U) Decided on January 20, 2005 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 20, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: January 20, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., PATTERSON and RIOS, JJ.
2004- 409 RI C

RAYMOND CARR and JAMES McKERNAN, Appellants,

against

NOREEN RUFFINO and ANTHONY C. RUFFINO, Respondents.

Appeal by plaintiffs from a post-trial order of the Civil Court, Richmond County (P. Straniere, J.), entered May 20, 2003, which denied their motion to set aside the jury verdict on the issue of liability which found the plaintiff driver 60% responsible for the accident and the defendant driver 40% responsible for the accident.

Order unanimously affirmed without costs.

The trial court properly denied plaintiffs' motion to set aside the verdict as being against the weight of the evidence. The operative factor in a determination that the jury's verdict should be set aside is a finding that the jury could not have reached its verdict by any fair interpretation of the evidence (Manna v Don Diego, 261 AD2d 590
[1999]). Based on the evidence in the record, the jury could have reached its verdict on a fair interpretation of the evidence.

A rear-end collision with a stopped automobile establishes a prima facie case of negligence on the part of the operator of the moving vehicle and imposes a duty on the operator of the moving vehicle to explain how the accident occurred (Leal v Wolff, 224 AD2d 392 [1996]). In the case at bar, the defendant driver testified that she was driving behind the plaintiffs' vehicle on a narrow one-way street. Plaintiffs' vehicle was going slowly. There was no traffic in front of plaintiffs' vehicle. She stated that on three separate occasions the plaintiff driver stopped suddenly and she stopped behind him without hitting his vehicle. She then [*2]honked her horn three times and the plaintiff driver accelerated to approximately 20 miles per hour and then stopped short causing her to hit plaintiffs' vehicle in the rear. "One of several nonnegligent explanations for a rear-end collision is a sudden stop of the lead vehicle" (Chepel v Meyers, 306 AD2d 235, 237 [2003]). The jury apparently believed the defendant's testimony regarding the plaintiff driver's erratic driving and concluded that the accident was not solely the result of her negligence.

Finally, we note that the trial court properly exercised its discretion in permitting defendants to amend their answer to include an affirmative defense of comparative negligence. The plaintiffs were aware of this defense because it was referred to in various documents submitted prior to trial.
Decision Date: January 20, 2005