Clarke v. Phillips
| Citation | 978 N.Y.S.2d 281,112 A.D.3d 872,2013 N.Y. Slip Op. 08585 |
| Parties | Jellicoe CLARKE, appellant, v. Derek J. PHILLIPS, Respondent. |
| Decision Date | 26 December 2013 |
| Court | New York Supreme Court — Appellate Division |
112 A.D.3d 872
978 N.Y.S.2d 281
2013 N.Y. Slip Op. 08585
Jellicoe CLARKE, appellant,
v.
Derek J. PHILLIPS, Respondent.
Supreme Court, Appellate Division, Second Department, New York.
Dec. 26, 2013.
[978 N.Y.S.2d 282]
Sobo & Sobo, LLP, Middletown, N.Y. (Brett Peter Linn and Michael D. Wolff of counsel), for appellant.
Keane Mathless & Bernheimer, PLLC, Hawthorne, N.Y. (Jason M. Bernheimer of counsel), for respondent.
MARK C. DILLON, J.P., DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON, and JEFFREY A. COHEN, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from (1) a judgment of the Supreme Court, Dutchess County (Brands, J.) entered August 9, 2012, which, upon the denial of his motion pursuant to CPLR 4401 for judgment as a matter of law made at the close of evidence, and upon a jury verdict in favor of the defendant, is in favor of the defendant and against him dismissing the complaint, and (2) an order of the same court dated November 19, 2012, which denied his motion pursuant to CPLR 4404(a) to set aside the verdict and for judgment as a matter of law on the issue of liability or, in the alternative, to set aside the verdict as contrary to the weight of the evidence and for a new trial.
ORDERED that the judgment is reversed, on the law, the complaint is reinstated, the plaintiff's motion pursuant to CPLR 4401 for judgment as a matter of law is granted, and the matter is remitted to the Supreme Court, Dutchess County, for a trial on the issue of damages and for an appropriate amended judgment thereafter; and it is further,
ORDERED that the appeal from the order is dismissed as academic, in light of our determination on the appeal from the judgment; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
This case involves a rear-end collision between two motor vehicles. At trial, the plaintiff testified that his vehicle was fully stopped at a red traffic light, that he remained stopped even after the light turned green to let pedestrians finish crossing the street, and that his vehicle was then struck in the rear by the defendant's vehicle. The defendant testified that, prior to the accident, his vehicle was fully stopped behind the plaintiff's vehicle, and when the traffic light changed to green, the plaintiff's vehicle began to move forward and the defendant, in turn, moved forward. As he began to move forward, the defendant saw a group of pedestrians on the sidewalk to the right, and he turned his...
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