Chwojdak v Schunk

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Chwojdak v Schunk 2020 NY Slip Op 34544(U) December 31, 2020 Supreme Court, Erie County Docket Number: 813751-2015 Judge: Dennis E. Ward 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. [*FILED: 1] ERIE COUNTY CLERK 01/04/2021 09:21 AM NYSCEF DOC. NO. 59 INDEX NO. 813751/2015 RECEIVED NYSCEF: 12/31/2020 STATEOFNEWYORK . SUPREME COURT: COUNTY OF ERIE GARY CHWOJDAK and KAREN CHWOJDAK Plaintiffs, Index No. 813751-2015 vs. HON~ DENNISE. WARD, J.S.Co MICHAEL D. SCHUNK Defendant Francis M. Letro, Esq. Carey C. Beyer, Esq., ofcounsel Attorney for the Plaintiff Kenney Shelton LiptakNowak LLP Nelson E. Schule, Jr., Esq. Attorney forpefondant DECISION & ORDER Pending before the court is the plain tiff's motion to set a aside the verdict, or for judgment notwithstanding the verdict; orJor a new trial, pursuant to CPLR 4401 & 4404. Setting aside a verdict and granting .judgment as a matter of law requires the court to find that there is no valid line of reasoning and permissible inferences thatcouid lead rational persons to the conclusion reached by thejury, Afinding of judgment as a matter of law resolves the question in the moving party's favor and eliminates the Juris re.le in evaluating the issue (Cohen v. Hallmark Cards, 45 NY2d 493,498 [1985]). Setting aside a verdict as againstjhe weight of the evidence bnly results in a new tri aI. The standard fo t determ lh ing whether a·. Verd ic:t is again st the weight of the e.Vide nee. is " whether "'th~ evidei7 ce so prepondera:te[ d] in favor of the [p iai ntiff] that [the -_ ·--·······--.... ,..•... , .......,,...... ............ , .. ,...... , ....... -.....-........... .. ...... - - ., ,. 1 of 6 _ _ ,,_,__, .. , .. ~.,,,,_._v,,,.,._,~,••,,,,-,.,.,.,y,, _ _ _ _ _ _ _ _ ,,ss,-~•..-,y,,,,,..,, .. ~ • • - - - , • • . . - y • • • .. m••.,,..,..,,, _ _ .......... ,,.,,..,.....,,,.,_., __ ,...._._, .... , ... . [*FILED: 2] ERIE COUNTY CLERK 01/04/2021 09:21 AM NYSCEF DOC. NO. 59 INDEX NO. 813751/2015 RECEIVED NYSCEF: 12/31/2020 verdict] could not have been reached on any fair interpre tation of the evidence""' (Lolik v Big VSupermarkets, 86 NY2d 744, 746 [1995]), quoting Moffatt v Moffatt: 86 AD2d 864, affd. 62 NY2d 875 [19841). 'The discreti onary power to set aside a jury verdict and order a·newt rial must.be •exercised with conside rable caution'' (Nicastro v Park, 113 AD2d 129, 133 [2 nd Dept. 1985]). Great deferen ce must be given to the fact-finding function of the jury; Id. at 136. The plaintiff argues for a newtria l based on three claims oferror ; First, plaintiff argues that the court should not have charge d the emerge ncy doctrin e, in.light of plaintiff s admiss ion that a whiteou t was foresee able and that he had experie nced.m ore than one of them on his way to the point where the acciden t occurre d. Second , he asserts that Police Officer LaFalce should not have been allowed to testify as an expert witness, due to the absenc e of expert disclosure and the failure of the witness to co nd ucta ny actua I acciden t .reconstruct ion. Third, he argues th at the evidenc e ·is agains tthe weight of the evidenc e. Charge on Einerg ency Dovtrin e Turning first to the jury instruction on the emerge ncy doctrine, this court was bound by the prior ruling of the Appella te Division, which had already found that the defend ant demons trated his entitlem ent to rely on such a charge in this case. (See chwojd ak v. Schunk, 164 AD3d 1630 [4th Dept. 20181). At trial, and on this motion, plaintiff argues that the jury charge on emerge ncy -"2- 2 of 6 [*FILED: 3] ERIE COUNTY CLERK 01/04/2021 09:21 AM NYSCEF DOC. NO. 59 INDEX NO. 813751/2015 RECEIVED NYSCEF: 12/31/2020 should not have. been given becaus'3 at trial the defendant .admitted··that the whiteout was foreseeable1 inasmuch asthe·defe ndant.had experienced whiteouts prior·to the one that precipitated the collisJon. However, this very same argument was argued to:the Ap:pellat~ D.ivision and the same testimony was.·set forth in the defendant's deppsitio.rt testimony included in the re:cord on appeal .to the Appellate Division. (See Docket #44, Record on Ap.peal; pp 445-446). The .plaintiff's.. attorney quote.d from the defendant's· deposiUoh and argued as.follows: "The Defendant's actual ·testimony is cleat He· experienc ed multiple whiteout conditions throughou t his drive from· workto the accident site.,.. Id., at p ..445 1 1f5). '.the defendari fs deposition was quoted: A. Q. A. There were times,. prior to the. ac.cictent, where l couldn'ts_eethe front of-my hood.And that was .all the way along C.lintoh .Stteetaft.er you left? .Off a.nd oh thrc,ugh Clinton Street up until the point the 'accident happened. Id. at445. The plaintiff has thµs already arg1.1ed to the Appellc;1t~ Division that this was not an appropriat e case for a charge on the emergency doctrine, ba.sed. on the defendant having exp$.rienced multiple whiteouts prior to the.accide nt Regatdless. of how this court vievVs such testimony, the argument was rejected by the·court ruling on plaintiff's sumr,nary ji.Jdgrnenf.motion and by the Appellate Divisio"n, which stated: "Defenda nlthus raise.d an issue. of fact whether he was confronted with a ·'sudden':arid .temporary' whiteout c.onstitut[ing] a qualifying emergenc i"· (ChWojq akat_, ·qudting Barnes v. -3- -·····-·. ····-···---··-·-··--·-,.•-·-·--···-........... ·-· ......··-····-·······-········----·~-----·••---··-······-·-····•-··. ...... . 3 of.. -·----·-··-·--·· 6 , [*FILED: 4] ERIE COUNTY CLERK 01/04/2021 09:21 AM NYSCEF DOC. NO. 59 INDEX NO. 813751/2015 RECEIVED NYSCEF: 12/31/2020 Dellapenta, 111 AD3d 1287, 1288). In light of the Appellate court decision, which is the law of the case and binding oh this court, there was. no legal basis to deny defendant an instruction on the emergency doctrine. Testimony of Officer LaFalce Prior to trial, the plaintiff made a motion in limine to preclude all portions ofa police accident report and the related testimony ofthe police officer, regarding the cause of the accident. The basis for the motion was that the conclusions in the report c!S to "cause" ofthe accident were based primarily on the hearsay account of the. two drivers. Additionally, it was also argued that the officer had not been identified as an expert witness in advance of trial. By way of compromise, the witness was called to give voirdire testimony priorto ruling on the motion. During the voir dire, the officer admitted that he did no independent investigation, apart from taking pictures and personally observing the presence of snow and ice on the roadway. During the· \ioir dire testimon y,· the officer stated that he assesse d factors that contributed to. causing the rear-end accident. He decided not to issue tickets. He noted in his report that visibility was limited due to the weather; however this conclusion was based solely on the statement from defendant, Mr. Schunk, and no other evidence. The motion in limine was granted in pa rt, s1,.1ch that the jury was p reel uded from hearing that one ofthe contributing causes of the accident was the whiteout, of which the officer had no personal knowledge. The Officer was, however; deemed qualified as -4- • • '•'•••••••-•••~•~••••••v.,• ••• • 4 of 6 •••~,•~~•~-~-~ --••••••~.,,.,-., •-,~=-•~~~~~• •,~,v •• =••-•••••• [*FILED: 5] ERIE COUNTY CLERK 01/04/2021 09:21 AM NYSCEF DOC. NO. 59 INDEX NO. 813751/2015 RECEIVED NYSCEF: 12/31/2020 an expert. On cross~examinati9n i;1t trial, the officer was asked whether he.could have, based on the facts, chosen to.issue tickets to defendant for driving unre:a:soha:bly for the co11dition$.Ot followin.Q toodosely . He.answered those qµestions .in the affirmative. He further admitted thathe decideq ·nofto issue traffic tickets t.o defemdant as a matter pf discretion. The jury was thus afford.ed the opportunity to d.et~rmine that the Officer did not rule ou_t driving tea. fEist for the c.ondidons as a. potential. factor h causing the accident The co.urt therefore discerns no error with regard to the testimony of Officer LaFalCE:!·. Weight of the Evidence During the course of the trial 1 the defendant, Mr. Schunk, acknowledged th~t he may have been fravelin9 too fast for the .road conditions. As noted, he hc1d admitted observing whiteout conditions, from his window at work between 7 a,m. and 11 a.m. and further. adrnitted eJ<periencing whiteout .conditions more than once between the time he· left work and the accident. However, the jury could frnd that these cori~1tions were of brief duration and thus did not prevent the final whiteout from establishin g a ··sudden and unanticipated emergenc t Shortly before the accident, the defendant arri\/ed at·an area where there were no buildings and thus open area. Defendant kn·ew th·ere Wa$ e1 oar ahead of him, and he tried to coast to a stop. Just before the crash, piaintiffs tail Hg his. he saw the re,d stop light and saw At that point, he hit his brakes but he skidded and. hit plaintiff's vehiclesquare on. -5-' ••-••••-••••-- ••• • •••--•·•·••·••=••-•-•••-- ••••~~•••"'"•-·"•-•••••- ""--••---- •-----~••=--•••·•••·••••~••••-•.......•,Y·•-Y•=•• ....·•··•--••••• 5 of 6 • - ~ ..•••--•~~Mw••••"'~•-a...., ..,•• -•••••••••••""•• ••• [*FILED: 6] ERIE COUNTY CLERK 01/04/2021 09:21 AM NYSCEF DOC. NO. 59 INDEX NO. 813751/2015 RECEIVED NYSCEF: 12/31/2020 The jury ultimately found that this was a sudden emergency, not of the defendant's own making, and that he had acted reasonably under the circumstances. While the defendant recognized at tria l that he may have been going too fast for the conditions, in light of the degree of the impending whiteout, the jury apparently felt that the defendant had acted reasonably in light of the sudden and unanticipated event that he experienced . "'Where a verd ict can be reconci led with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view ... and the trial court should not set aside [the] verd ict unless it is palpably irrational or wrong "' (Tozan v. Engert, 188 AD3d 1659 [4 th Dept. 2020], quoting Lesio v. Attardi, 121 AD3d 1527, 1528 [4 th Dept. 2014]) . The court cannot say that the jury's interpretation of the facts, in light of the emergency charge, was either "palpably irrational" or "palpably wrong" (McMillian v. Burden, 136AD3d 1342 [4 th Dept. 2016]). According ly, it is hereby ORDERED, that the motion to set aside the verdict and order a new trial is, in all respects, DEN IED. DATED: December 31, 2020 IJ Dennis E. Ward, J.S.C. HON. DENNIS E. WARD, J.S.C. -6- 6 of 6

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