Brogan v. Zummo

• Decision Date: 07 February 1983
• Citation: 459 N.Y.S.2d 293,92 A.D.2d 533
• Parties: Santina BROGAN, Appellant, et al., Plaintiff, v. Joseph ZUMMO et al., Respondents, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 293

459 N.Y.S.2d 293

92 A.D.2d 533

Santina BROGAN, Appellant, et al., Plaintiff, v. Joseph ZUMMO et al., Respondents, et al., Defendant.

Supreme Court, Appellate Division,

Second Department.

Feb. 7, 1983.

Bruce G. Clark, New York City, for appellant.

Griffin, Scully & Savona, New York City (William F. McNulty and Anthony J. McNulty, New York City, of counsel), for respondent Zummo.

Shannon, Flaherty & Wood, New York City (James M. Gilleran, New York City, of counsel), for respondents Poliseno.

Before DAMIANI, J.P., and O'CONNOR, RUBIN and BOYERS, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, etc., plaintiff Santina Brogan appeals from so much of a judgment of the Supreme Court, Nassau County, entered September 30, 1981, as is in favor of defendants Joseph Zummo, Frances A. Poliseno and Anthony Poliseno, dismissing her complaint as to them.

Judgment reversed insofar as appealed from, action severed as between appellant and defendants Zummo and Poliseno, and a new trial granted on the first cause of action asserted in appellant's verified amended complaint against said defendants and upon the cross claims of all the defendants, with costs to abide the event.

In this negligence action to recover damages for personal injuries, etc., Santina Brogan (hereinafter plaintiff) challenges the trial court's charge to the jury. The jury exonerated defendants Zummo and Poliseno and apportioned culpability between plaintiff Santina Brogan and defendant Scott J. Smith at 90 percent and 10 percent, respectively. The action against Scott J. Smith and Lucia Smith, the owner of the motor vehicle Scott was operating at the time of the event, was thereafter settled before a trial could be held to assess damages.

To the extent that the facts were not disputed in this highway obstruction case, the record shows that sometime between 11 A.M. and noon on January 20, 1976 defendant Zummo slowed his motor vehicle traveling eastbound on the Fallwood Parkway in South Farmingdale when he observed the vehicle in front of him skid into a parked car in a narrow parking lane about 25 to 35 feet from the parkway's four-way stop intersection with Woodward Parkway. A few seconds later his vehicle, which was stopped a few feet from the accident, was itself struck in the rear by a motor vehicle operated by defendant Frances A. Poliseno and the impact pushed his own vehicle two to two-and-one-half feet forward. Neither his nor the Poliseno vehicle was disabled by this collision. Zummo immediately left his vehicle to exchange information with Poliseno and shortly thereafter plaintiff Santina Brogan came up to them from her house across the parkway to inquire if anyone had been hurt. Plaintiff offered the parties the use of her home pending arrival of the police, who had been summoned. She then decided to inspect the damage to the rear of Zummo's vehicle and, five to seven minutes after her arrival on the scene, she stepped between the Zummo and Poliseno vehicles to do so. She was injured almost immediately when another vehicle, operated by defendant Scott J. Smith, rear-ended the Poliseno vehicle and propelled it forward six or seven inches.

Of pertinence to this appeal is the conflicting testimony regarding driving conditions. Zummo testified that it had begun snowing lightly some time earlier that morning, that a light snow covered portions of the ground, making the roadway slippery, and that visibility was clear for 200 feet, or two blocks. Frances Poliseno, who was a friend of plaintiff's, testified that the snowfall was light, the roadway was slippery and the visibility of 100 to 150 feet or a block or two was sufficient for her to observe, through Zummo's windshield, the initial accident involving the parked car. Smith, who was 16 years old at the time of the accident and was driving to high school with a friend, testified that visibility had been "very poor". According to him, the snow accumulation had made maneuvering difficult, at least in stretches of the roadway other than the portion of the parkway in question, and he noted that the parkway declined toward the intersection at the point of the accident. Plaintiff testified that there had been no problem with visibility that day, that she was able to see two-and-one-half to three blocks, or some 600 to 800 feet, and that she saw the accident from her kitchen window across the street. She said it had not been snowing hard, that only a "light dusting" of snow had made the road wet and slippery without covering the blacktop, and that traffic was light.

Zummo testified that he had had no problem stopping his vehicle on the pavement, having coasted before braking without any skidding, but Frances Poliseno said that she had seen Zummo's vehicle skid slightly to the right and she herself skidded in his tracks while slowing down for the stop sign. Both conceded that they did not turn on their warning lights or pull their vehicles into the parking lane. Frances Poliseno admitted that no parked cars blocked her and plaintiff testified that there was sufficient room for both drivers to have moved over. Zummo, however, testified that he did not have sufficient room to make the necessary maneuver.

Scott J. Smith testified that he was traveling at 20 miles per hour when he first became aware of the stationary vehicles in his lane of travel some 75 feet in front of him, although he said visibility was twice that distance. He suggested that his failure to notice the highway obstruction earlier was attributable to the possible existence of another motor vehicle in his lane that had blocked his view temporarily. His reaction was to remain in his lane and coast almost to a stop before applying his brakes when he was approximately 15 feet from the rearmost vehicle. He was not anticipating a problem in stopping, but when he braked he began to skid forward and struck the rearmost (Poliseno) vehicle. He testified that he had done all he could to avoid the accident in what he described as a traffic-congested area. Nevertheles when invited to testify as to how the stationary vehicles had impaired...