Brown v. Village Mobile Service Station, Inc.

• Decision Date: 08 November 1990
• Citation: Brown v. Village Mobile Service Station, Inc., 561 N.Y.S.2d 458, 167 A.D.2d 158 (N.Y. App. Div. 1990)
• Parties: Peggy BROWN, et al., Plaintiffs-Respondents, v. VILLAGE MOBIL SERVICE STATION, INC., Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 458

561 N.Y.S.2d 458

167 A.D.2d 158

Peggy BROWN, et al., Plaintiffs-Respondents, v.VILLAGE MOBIL SERVICE STATION, INC., Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Nov. 8, 1990.

Before ROSS, J.P., and ROSENBERGER, ASCH, KASSAL and WALLACH, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Harold Galloway, J.), entered on March 28, 1990, which, after a jury trial on liability and a stipulation on damages, awarded plaintiffPeggy Brown damages in the amount of $250,000, and awarded plaintiffGilberto Matos-Morales damages in the amount of $100,000, unanimously affirmed, with costs.

The defendant service station performed an inspection of the brakes of a state-owned automobile.The following day, as the vehicle was being driven by plaintiff Matos, with plaintiff Brown and another person as passengers, the brakes "locked", causing the car to skid and spin into a guardrail.

Contrary to the defendant's argument on appeal, the plaintiffs were not obliged to prove a precise link between specific flaws in the inspection and the resulting accident, or to eliminate with certainty any but the most remote possibilities inconsistent with a finding of negligence (seeArchie v. Todd Shipyards Corp., 65 A.D.2d 699, 410 N.Y.S.2d 69).The plaintiffs' expert testified that, under the facts, there was no likely cause of the accident other than a negligently performed brake inspection.Contrary testimony from the defendant's expert raised only a question for the jury (Rivera v. New York City Transit Authority, 161 A.D.2d 132, 555 N.Y.S.2d 254).

A missing witness charge was properly given as to the defendant's...