Gute v Grease Kleeners, Inc.

Annotate this Case

Download PDF

Gute v Grease Kleeners, Inc. 2020 NY Slip Op 32286(U) July 6, 2020 Supreme Court, Suffolk County Docket Number: 01666/2015 Judge: William G. Ford Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] Q . . . . . , . . . ; . ORlGlNAlf (J coPy ; • . 4, f • .,.. " ..• ,. 1- - j • • SHORT FORM O'-!) r.tt'M ._.,,"-'.., - ,_ • ~ 1 ., ,. ;.~'. ] j . ..._.,..., . . ... ........,..j INDEX NO.: 01666-2015 SUPIU: ME COURT-STATE OF NEW YORK l.A.S. PART 38 - SUFFOLK COUNTY PRESEN T: I-ION. WILLIAM G. FORll .JUSTrCE of the SUPREME COURT Motion Date: 2120/20 Motion Adjourn Date: 05/ 14/20 Motion Seq #: 007 - Mot D PLAINTIFF'S ATTORNEY: PATRlC IA GUTF: and RI C HARD G LITE, Plaintiffs, APPELL & PARRI1\ELLI, ESQS. BY: JOHN .J. APPELL, ESQ. 3 Wesl 35th Street. 6th Floor ~ew York . NY 10001 -against- GREASE KLEENEHS, IN C., RORF.RT A. FLYNN Defendants. DEFENDANT'S ATTORNEY: DESENA & SWEF.NF.Y, LLP BY: MICHAEL .J. KELLY, ESQ. 1500 Lakeland /\venue Bohemia. ' Y 11716 Read on this motion hy Plairnifl scef..ing relief pursuant to CPL.R §§ 440 I and 4404{a) to set a~idc the jury \crdict the Aftinnation of John J. Appell Esq. and e:-..hibits; the Affirmation of Shawn P. O'Shaughnessy F.sq. nnd c:-.hibil!'t. nnd 1J1c Rcpl~ A ffi rma1i11n of John J. Appell: it is ORDERED that the motion is determined as oullined below BACKGROUND This actio n arise!> from a three , ·chicle motor vehicle accident which occurred on December 8. 2014 on Patchoguc-llol brook RoaJ in Suffolk County l'\Y. Patchogue-Holbroo._ Ruad in lhe area \\hen: lhe collisions occurred is a four-lane limited access, nonh!south roadway. with a median separating 1hc no rth and south bound lanes of travel. Plaintiff Patricia Gmc was operating her lnliniti northbound tlt sometim e after 5 PM in the evening, when the Romano vehicle, which was travel ing soulhhound. on the other side of Patchoguc-l lo lbrook Road. crossed the median, entered her lane of I ravel and col Iidcd hcadnn wi1h her. Robert Flynn operated a Forti Econoline van, owned by his employer G rease Klccncrs. in the same direction as the Gutc ,·ehicle. approximately 1-2 car lengths behind. lmrnediatel) afier the collision occurred between the Rom ano and Gutc vehicles, the Flynn ,·chicle also collided w ith lhc Gutc vehicle. PROCE DURAL HISTORY PlaimifTmovcd for s ummary judgment on liabilicy as lo Romano and Flynn. Supreme Court [* 2] Gute v Grease Klceners, ct al Index Nu mber: 01666-15 Page 2 (Maya. J) decided both motions denying summary judgment as to both defendants. The plaintiff appealed from that order. The Appellate Di\'ision Second Department, in a decision dated March 6,2019. afllrmed the decision of the trial court (170 !\D3d 676). Prior to the liability trial of this matter, the plain ti ff settled with defendant Romano. Additionally. before the liability phase of the trial began, plaintiff and the remaining defendant Flynn. executed a stipulation that provided i111er a/ia, : "lt is agreed by t.he attorneys for the plaintiff and Mr. Flynn that we will try liability only and that in the event that plaintiff gets a verdict for one (I) percent or greater against Mr. Flynn that \'Ir. Flynn will offer up through his insurance companies, the total amount of the insurance coverage which is available". The stipulation \'\'Clll on to say that the carriers had agreed to be so bound. Th ou~h damages were not before this jury. counsel fo r both parties confir~ncd that the extent of plaintiffs injuries were a significant factor in the calculation of the terms of the stipulation. A jury \Vas empaneled and the trial proceeded over three days, October 23-25, 2019. During the trial. all three vehicle operators, plaintiff Patricia Gute, defendants Christopher Romano and Robert Flynn testified. SUMMARY OF THE ARGUMENTS Next plaintiff argues that the verdict must be set aside because defendant Flynn's tes timony established that his conduct constituted a violation of one or more provisions of the Vehicle and Traffic Law (hereinafter VTL..) and that these unexcused violations of the YTL constitute negligence per se and cannot be disregarded by the jury. In this Court's charge to the jury, the Court charged New York Pattern Jury Instructions (hercinafter"'P JJ") sections: 2:82(a) premised on VTL 1l29(a) as to deli.:ndant Flynn. The charge was modi lied slightly to fit the fact pattern of this case. Specifically. the Court charged :The failure to obey VTL 1129(a) constitutes negligence. If you find that the defendant fail ed to comply with that law because he followed another vehicle more closely lhan was reasonable and prudent under the circumstances, including the speed o f the veh icles, the traffic conditions. the condition of the highway. you must find that Mr. Flynn was negligent'". The court charged PJ I '2:77.1 as well as PJI 2:26 as to each of the respective vehicle operators stating that each of the operators assert that the other failed to comply with VTL l 180(a) speed not reasonable and prudent. and YTL I 146(a) failure to exercise due care. The Court also charged PJI 2:71 Prox imate Cause -Concurrent causes. The Court did not charge the emergency doctiine. see Cllristo v. Sanzone, 96 NY2d at 174, 726 NYS2d 3 34) and defense counsel did not take exception to the lack of that charge. [* 3] :. Gu tc v Grease Klecners, ct a l Index Number: 01666-15 Pagc3 At trial. defendant Flynn contmdicted his deposition testimony. and admitted that on the day of the accident. he was following one car length behind the plaintiff as he accclcra1cd up a hill. tmvcling on at least one "real worn front tire". on a wet roadway with some snow and ice present, after passing a warning sign that stated "Rridge Ices Before Roadway". Further in his testimony, Flynn stated in response to the question. Q: ··Do you think it was safe under those conditions with those wamings at that speed to be only one car length behind Patty Gute"s car just before the accident occurred. do you think that was safe, Mr. Flynn?"' A: "No". When the jury returned after deliberations, they answered only the first interrogatory: .. \Vas the defrndant Robert Flynn negligent?"' and answering that question, no. This determination. plaintiff argues. is against the weight of the evidence and requires that the verdict be set aside, and that there be a new trial on liability, or in the alternative that this requires the court 10 direc1 verdict in favor of the! plaintiff In opposition. defendant argues that even if the emergency doctrine was not charged. the jury inferred the doctrine based on the facts of the accident. and found no negligence as w Flynn because he should not be held to the same s tandard or care as a driver presented with a non-emergency situation. Therefore. defendant argues the jury verdict should not be disturbed. Defendant' s counsel also argues that Flynn gave testimony that the tires and brakes on his vehicle were in good working order, although that wa" contradicted on cross examination when he was shown photographs of the left front tire taken on the evening of the accident which he acknowledged were ..worn, real worn". Defendani's counsel furthe r argues from Flynn's testimony that he indicated at one point, that the time between cross-over to impact was '·just seconds" and that it was ··just so quick." But again, this was contradicted by additional cross examination testimony that it may have been as much as ti ftccn seconds between crossover to impact. rmportantly. that last cross examination cl icited the response from defendant that had he been aware of the hazard s ign, aware of the road condition and that the second collision would n ot have happened. Essentiall), defendant"s cotmscl argu1:s the jury determined that the crossover furni shed the condition for the second collision, <lnd this determination should not be disturbed. He cites Papadakis v. fl M Kelly fire. 97 AD3d 731 and Weclrter v. Ketner 40 AD3d 747 for this proposition. These cases arc factually distinct from the matter at bar. Papdakis involved a summal)' judgment motion. and Wechter involved a parked (non-moving) vehicle. Defense counsel's affim1ation is silent on the admined \'iolation(s) of the YTL. STANDARD OF REVl EW CPLR 4404(a) provides, in relevant part, that: "faltter a trial of a cause of action or issue triable of right by a ju11·. upon the motion or any party or on its own initiative. the court may set aside a verdict or any judgment entered thereon and direct rhat judgment be entered in favor of a party entitled to [* 4] G utc ' ' G rease Klccncr s, et al Index Number: 0 1666-15 Pngc .t judgment as a rnal\t:r of law or it may order a new trial of a cause of action or separable.; issue where the 'crdict is contrary to the weight of the evidence·· (CPLR 4.:tO-l[a] ). The Coun of Appeals has rewgnized that the setting aside of a jury verdict as a matter ofla" and !he setting aside of a jury ,·crdict as contrary lo the weight of the evidence involve two inquiries and 1wo different standards (see Colten v. llallmflrk Cartlv. 45 NY2d 493, 498, 410 NYS2d 282). For a coun to conclude as a matter of law that a jury verdict is not supported by sufficient evidence, it must find that there is ··simply no valid line of reasoning and pcnnissiblc inferences which could possibly lead ... to 1he conclusion reached by the jury on the basis or the evidence presented at trial" (id. at 499, 410 NYS2d 282). I Iowcver. ·'[wJhethcr a jury verdicr should he sci aside as contrary to the weight of the cvidt:nce does not involve a question of Jaw, but rather requires a discretionary balancing of many factors" (s<.'e Scalog11a v. Osipov, 117 AD3d 934. 935. 987 "YS2d 395). ·· ·When a verdict can be reconciled with a rca..onable view oft he evidence, the succcssful party is entitled to rhc presumption that the jury adopted that view··· (Scalog11a v. Osipov, 117 AD3d at 935. 987 NYS2d 395, quoting H andwerker,._ Dominick L Cen 1i, Inc., 57 AD3d 615. 616, 869 NYS2d 2.0 I). "'I\ jury verdict should not be set aside as contrary to the weight of the e\·idence unless the jury could not have reached the verdict on any fair i111erprcta1ion of the evidence" (Costa v. Lop ez, 120 AD3d 607. 607. 990 NYS2d 878; see Echeverria v. MTA Long Is. Bus A1111l., I 00 AD3d 588. 589, 953 NYS2d 288). Thus, rationality is the touchstone for legal sufficiency, while fai r interpretation is the criterion for weight of the evidence ( see Nica.r;tro v. Park, 113 AD2d 129, 135, 495 N YS2d 184). Where a court makes a finding that a jury verdict is not supported by sullicient evidence, it ''leads to a directed verdict terminating the action without resubmission of the case to a j ury"' (id. at 132. 495 NYS2d I 84). Where a court finds that a jury verdict is agains t the weight o f the evidence, it grants a new trial (s~e id.). The eminent Justice Leon Lazer in N icastro s upra described the choice this court faces thus: "Although at first glance the fair interpretation phraseology might seem to reduce the weight of the evidence question to one of law, this merely serves to illustrate the danger of relying upon set phrases rather than undcrlyin 0 principles. Catcc his tic use of' the terminology cannot tr::ins form an in1rinsically discretionary judicial function into the more constrained approach appropriate to the resolution of a question as a matter of law. le is wdl settled that a motion to set aside a verdict as contrary to the weight of the evidence invokes the court's discretion, and resolution of such a motion involves an application of that professional judgment gleaned from thi.:: Judge's background and experience as a student. practitioner and Judge (see, Mlllm v. Hunt, supra., at p 14 I; Siegel, NY Prac § 406; 4 Weinstein-Korn-Miller, NY C iv Prac ~ 4404.09). The significance of the fair interpretation standard is that it provides a strong cautionary note by stressing to the court that the overturning of the jury's resolution of a sharply disputed factual issue may be an abuse of discretion if there is any way to conclude that the verdict is a fair reflection of the evidence. It is s ignificant, however. that the mere fu1.:1 that some testimony in the record has created a factual issue docs not deprive the Trial Judge of the power to [* 5] G utc v G rease Klccncrs, ct al Index Number: 01666-15 Page 5 intervene in an appropriate case (set'. e.g., lion v. S t. Jolt11 's Queens flosp., 86 AD2d 863; A lle11 ''· Wootls· Mgt. Co. , 86 AD2d 530; compare. Cnlln v. Becker. I 00 AD2d 950. with Weber v. City nf New York , I 0 I AD:!d 757. qffd 63 NY2d 886). To require the complete absence of factual issues as a condition precedent to setting aside a jury verdict would indeed trunsfonn the question into one ofla\\ and would ignore the distinction between setting uside u verdict because ofinsunicicncy and doing so because it is against the weight of the evidence. In comparing the two standards in the context of a r laintiffs verdict, [we stntcd in O'Boy le v. Avis Rent-A-Car Sys. (supra .. at p 439)J that .. [r jationality, then. is the touchstone for kgal sufficiency. while fair interpretation is the criterion for weight of the evidence··. Although the language of the two inquiries, viewed out of context and without regard for conceptual distinctions, is not dissimilar, there is a real difference between a finding thm no rational jury could reach a particular resolution and a finding that a jury could not have reached its conclusions on any fair interpretation of the evidence (see, Colle11 ''· Hallmark Cards, 45 NY2d 493, 498-499, suprct.; O 'Boyle v. Avis Re11t-A-C<1r Sys . supra., at p 439). Were this not so and i ran absence of bona fide factual issues were requ ired, a court would never be justi lied in setting aside a defendant's \'erdict as being against the weight of the evidence and ordering a new trial. for in each such case the proper rcmcd~ would be entl) of judgment notwithstanding the verdict. Indeed, it is the existence of a factual issue which justifies the granting of a new trial rather than a directed verdict (.~ee, Co/i e1r v. Hallmark Cnrtls, supra., at p ..t99: Middleto11 ' '· Wltitridge, 213 NY 499, 507-508). It is, perhaps, the adjective "fair" which difTcrentiates the two ideas most aptly although the concept is as elusive as the standard il is used to illuminate. Webster's Third New [ntcrnational Dictionary (8 15) define.: "fair" as "characterized by honesty and justice: free from fraud, injustice, prejudice. or favoritism ... In a further comment. the same lexicographers distinguish .. fair .. from synonyms such as "just", "equitable", '·impartiar', "unbiased'' and others by describing "fair'' as the most general of the tenns and implying "a disposition in a pe rson or group to achieve a fitting and right balance of claims••• or ... a quality or result in an action befitting such a disposition''. ··fair.. is thus a broad and multifaceted concept that at various times may include definitions adopted by courts in other j urisdictions ,.vhich have resorted to synonyms such as just. equitable. evenhanded, honest, impartial. reasonable, upright and free from suspicion of bias (see. Black's I.aw Dictionary [4th cdj: 35 CJS, Fair. at 597). I Iowcvcr the particular Judge faced with deciding the motion to set aside might view the word "fair" if that were the sole ingredient of the fair interpretation fonnula, the fact remains that this is not the only ingredient. [* 6] G utc v G r ease Klccncrs, ct al Index :'\umbe r : 0 1666-15 Page 6 That respect v. hich is to be accorded the jury's dctcnnin~ttion must enter into the decision as "veil. Combining these two factors, the rubric that a defendant's verdict in a tort case can only he overturned if a jury could not have reached it ·'by any fair interpretation of the evidence•· simply restates the guiding principle chat in reviewing the \vhok trial to ao;cenain whether the conclusion was a fair reflection of the evidence. great deference must be given to the fact-finding function of the jury. \\'hi le this approach clearly tilts the scales in fo\'or of a verdict's survival. it leaves the court with a breadth or discretion which obviously varit:::; with the facts and events in each case (.ice .Vicastro v. Park 113 AO 2d 129 at 134). DISCUSSION Taking as <t start ing point the phrase, "any v:ay to determine that the verdict is a fair reflection of the evidence," this court concludes that the verdict is not a fair reflection of all the evidence in this case. Having personally listened to all the testimony as it was given, and having reviewed all the tes timony and exhibits for the purpose of determining the instant motion leads to the inescapable c.:onclusion that the jury ignored the e,·idcnce of defendant Flynn's negl igence. Stated Odiffcrcnlly. it is dearly against the weight of the evidence for the jury to have determined, as it did, that defendant Flynn \\US free from all fault for the second collision. It was improper for the j ury to give no weight to the admitted violations of the VTI ., any one of which could have Conned the basis for a finding of liability. I laving heard and reviewed the testimony and having reviewed the photographic evidem:c which clearly shows that on the evening of the accident. the defendant was operating a vehicle with almost no tread remaining on a rirc necessary to steer the vehicle, thjs court finds that the most glaring omission was the un-refuted testimony by defendant Flynn that he knew he was following the Gutc vehicle too closely for the traffic and weather conditions then and there existing. For the jury to have resol ved this testimony in favor of the de fondant and Lo have decided that he was completely free from any liability for the second collision was error. This mnnifestt>' was not ::i fair interpretation of the evidence presented at trial. particularly when the meaning of fair includes. free from injustice. prejudice or favoritism. That said however, there is clearly insufficient evidence to set aside the verdict and direct verdict for the plaintiff. Therefore the verdict mu.st be set aside and a new trial had on the issue of Flynn· s liability. CONCLUSION Accordingly, for all the foregoing reasons the motion of plaintiff seeking relief under CPLR 4404(a) is grnntcd to the extent that the verdict shall be set aside and a new trial on the issue ofliability shall be had. and is otherwise denied ; and it is further [* 7] Gute v Grease Klecners, ct a l Index Number : 01666-15 Page 7 ORDERED that. if applicable. within 30 days of the entry of this decision and order. that plaintifrs counsel is also hereby directed to give notict: w the Suffolk Coun1y Clerk as required by CPI .R 8019(c) 'vith a copy of this decision and order and pay any fees should any be required: and it is forther ORDERED that plaintiffs counsc:I is hereby directed to serve a copy of this decision and order with notice of entry via certified mail return receipt requested on defendant's counsel forthwith . The foregoing constitutes the deci sion and order of this Court. Dated: July 6, 2010 Riverhead, New York WlLLIAM G. FINAL DISPOSITION __,.X-=--- FO l~D, "110~-FINAL orsrO~ITION J.S.C.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.