Lopez v Ceravino

[*1] Lopez v Ceravino 2021 NY Slip Op 50873(U) Decided on May 27, 2021 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 27, 2021
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : JERRY GARGUILO, J.P., TERRY JANE RUDERMAN, ELIZABETH H. EMERSON, JJ
2018-1084 S C

Diana Lopez, Respondent,

against

Christopher L. Ceravino, Michael Dorney and Daria Dorney, Appellants.

Rivkin Radler, LLP (Merril S. Biscone of counsel), for appellants. Pillari & Vella, LLP, for respondent (no brief filed).

Appeal from an order of the County Court, Suffolk County (James P. Flanagan, J.), dated August 31, 2017. The order granted the motion by plaintiff Diana Lopez, pursuant to CPLR 4404 (a), seeking to set aside a jury verdict in favor of defendants and ordered a new trial.

ORDERED that the order is affirmed, without costs.

This action arose out of a motor vehicle collision which occurred in the westbound right lane of Montauk Highway in Copaigue, New York. There was credible evidence adduced at the liability portion of the jury trial that revealed that just prior to the accident, Diana Lopez was exiting a parking lot with her vehicle half on the apron and half in the right lane in order to cross over Montauk Highway and make a left turn. The evidence further showed that Christopher Ceravino, the driver of defendants' vehicle, had been traveling westbound on Montauk Highway in the left lane at 30 miles per hour when, from 150-200 feet away, he first noticed Lopez's vehicle between the apron of the parking lot and the right lane of Montauk Highway. Ceravino did not stop his vehicle, but, instead, moved into the right lane and ultimately struck the Lopez vehicle. The jury found that Lopez was negligent and that her negligence was a proximate cause of the accident and that Ceravino was not negligent. The County Court granted Lopez's motion pursuant to CPLR 4404 to set aside the verdict as against the weight of the evidence.

A jury verdict should not be set aside as against the weight of the evidence unless the [*2]verdict could not have been reached upon any fair interpretation of the evidence (see Nicastro v Park, 113 AD2d 129 [1985]). Here, the County Court properly set aside the verdict.

Vehicle and Traffic Law § 1143 provides that "[t]he driver of a vehicle about to enter or cross a roadway from any place other than another roadway shall yield the right of way to all vehicles approaching on the roadway to be entered or crossed" (see also Adobea v Junel, 114 AD3d 818 [2014]; Williams v Hayes, 103 AD3d 713 [2013]; Figueroa v Diaz, 107 AD3d 754 [2013]; Rahaman v Abodeledhman, 64 AD3d 552 [2009]). A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law (see Vainer v DiSalvo, 79 AD3d 1023 [2009]; Jones v Radeker, 32 AD3d 494 [2006]). Here, there was sufficient evidence to support the jury's finding that Lopez entered Montauk Highway into the right lane and failed to yield the right of way to all vehicles approaching. Thus, the jury's verdict finding Lopez negligent was supported by the evidence.

Nevertheless, there can be more than one proximate cause of an accident (see Lopez v Reyes—Flores, 52 AD3d 785 [2008]), because each driver has a duty to exercise reasonable care under the circumstances to avoid an accident (see Lu Yuan Yang v Howsal Cab Corp., 106 AD3d 1055 [2013]; Cajas—Romero v Ward, 106 AD3d 850 [2013]; Shui-Kwan Lui v Serrone, 103 AD3d 620 [2013]; Todd v Godek, 71 AD3d 872 [2010]). The evidence revealed that Ceravino was driving in the left lane at 30 miles per hour on Montauk Highway when he saw Lopez's vehicle in the right lane of Montauk Highway from 150-200 feet away. Furthermore, it was uncontrovered that Lopez never entered the left lane that Ceravino had been traveling in but that Ceravino moved into the right lane where he had seen the Lopez vehicle. Given the evidence presented at the trial, the jury verdict finding that Ceravino was not negligent did not rest upon a fair interpretation of the credible evidence, and therefore a new trial is warranted (see Sullivan v Pampillonio, 288 AD2d 299 [2001]).

Contrary to Ceravino's argument, the record does not support his contention that he was in a situation where he was faced with an emergency and had only seconds to react to the Lopez vehicle (see Bennett v Granata, 118 AD3d 652 [2014]; Kenda v Dunn, 117 AD3d 803 [2014]).

Accordingly, the order is affirmed.

GARGUILO, J.P., RUDERMAN and EMERSON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 27, 2021