Calla v. Becker

• Decision Date: 30 April 1984
• Citation: 475 N.Y.S.2d 90,100 A.D.2d 950
• Parties: Francesco CALLA, et al., Appellants-Respondents, v. Renee Y. BECKER, Respondent-Appellant; The City of New York, et al., respondents.
• Court: New York Supreme Court — Appellate Division

Page 90

475 N.Y.S.2d 90

100 A.D.2d 950

Francesco CALLA, et al., Appellants-Respondents, v. Renee Y. BECKER, Respondent-Appellant The City of New York, et al., respondents.

Supreme Court, Appellate Division Second Department.

April 30, 1984.

Firestone & Harris, Brooklyn (Alan J. Firestone, Brooklyn, of counsel), for appellants-respondents.

Fields, Zimmerman & Segall, Jamaica (Nigro, D'Anna & Utrecht, P.C., Forest Hills, Michael A. Haskel, Forest Hills, of counsel), for respondent-appellant.

Frederick A.O. Schwarz, Jr., Corporation Counsel, New York City (Leonard Koerner and Ronald E. Sternberg, New York City, of counsel), for respondent City of New York.

Abraham Hecht, Forest Hills, for respondent Welsbach Elec. Corp.

Ernest J. Williams, New York City (Joseph J. Klem, New York City, of counsel), for respondent Consol. Edison Co. of New York, Inc.

Before BRACKEN, J.P., and NIEHOFF, RUBIN and LAWRENCE, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., (1) plaintiffs appeal from so much of a judgment of the Supreme Court, Queens County, entered February 3, 1983, as dismissed their action against defendants City of New York, Welsbach Electrical Corp. and Consolidated Edison Company of New York, Inc., without submitting the issue of their liability to the jury, and (2) defendant Becker cross-appeals from so much of said judgment as held her to be 25% liable for the accident.

Judgment affirmed insofar as appealed from by plaintiffs.

Judgment reversed insofar as appealed from by Becker, on the facts, and new trial granted on the issue of the proportionate liability of plaintiffs and defendant Becker.

Respondents and respondent-appellant, appearing separately and filing separate briefs, are awarded one bill of costs.

The case involves a collision between a car driven by plaintiff Francesco Calla westbound on Booth Memorial Avenue and a car driven by defendant Renee Becker southward on Kissena Boulevard in Queens. The traffic signal which normally controlled the intersection was not operating and stop signs were installed to stop the traffic on Booth Memorial Avenue. At trial, Mr. Calla testified that he stopped before entering the intersection and noticed Becker's car three-quarters of a block away. He slowly proceeded into the intersection and his vehicle was struck by Becker's car. Becker testified that she stopped at the intersection because the traffic signal was broken, even though she did not have a stop sign facing her. She saw Mr. Calla's vehicle far up Booth Memorial Avenue. Thereupon, Becker slowly proceeded into the intersection, where the accident occurred. Becker testified that Mr. Calla's car was traveling at approximately 40 to 50 miles per hour just prior to the...