Cordero v. City of New York

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before LAZER
• Citation: Cordero v. City of New York, 492 N.Y.S.2d 430, 112 A.D.2d 914 (N.Y. App. Div. 1985)
• Decision Date: 05 August 1985
• Parties: Debra CORDERO, et al., Plaintiffs-Respondents v. The CITY OF NEW YORK, Appellant, New York City Transit Authority, Defendant, Bernard J. Cassidy, etc., Defendant-Respondent (and other titles).

Page 430

492 N.Y.S.2d 430

112 A.D.2d 914

Debra CORDERO, et al., Plaintiffs-Respondents v. The CITY OF NEW YORK, Appellant New York City Transit Authority, Defendant Bernard J. Cassidy, etc., Defendant-Respondent (and other titles).

Supreme Court, Appellate Division Second Department.

Aug. 5, 1985.

Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City (Leonard Koerner and Ellen B. Fishman, New York City, of counsel), for appellant.

Peter E. DeBlasio, c/o Steven DiJoseph, New York City (Edward P. Dunphy, New York City, of counsel), for plaintiffs-respondents Debra Cordero, Frank Cordero and Patricia Ann Spinelli.

Sutera, Siracuse & Sutera, c/o Steven DiJoseph, New York City (Edward P. Dunphy, New York City, of counsel), for plaintiff-respondent Helen Gaffney.

Frank E. Maher, c/o Steven DiJoseph, New York City (Edward P. Dunphy, New York City, of counsel), for plaintiff-respondent Maria T. Cacicio (one brief filed).

Benjamin Purvin, Lake Success, (William F. Larkin, New York City, of counsel), for defendant-respondent.

Before LAZER, J.P., and GIBBONS, BROWN and O'CONNOR, JJ.

MEMORANDUM BY THE COURT.

In consolidated actions, inter alia, to recover monetary damages for personal injuries and wrongful death, defendant City of New York appeals from a judgment of the Supreme Court, Kings County, entered October 11, 1983, which, upon a jury verdict, was in favor of (1) plaintiffs Debra Cordero and Frank Cordero in the principal sums of $1,000,000 and $20,000, respectively, (2) plaintiff Maria Cacicio in the principal sum of $500,000, (3) plaintiff Patricia Ann Spinelli in the principal sum of $250,000, (4) plaintiff Helen Gaffney in the principal sum of $100,000, and (5) plaintiff Bernard J. Cassidy in the principal sum of $100,000.

Judgment reversed, on the law and as a matter of discretion in the interest of justice, and new trial granted, with costs to abide the event.

The instant case arises out of a one-car collision which occurred in Kings County on April 9, 1978, at approximately 3:30 A.M. The accident resulted in the deaths of James Cassidy, the operator of the vehicle, and John Gaffney, a front seat passenger, as well as serious physical injuries to fellow passengers Debra Cordero, Maria Cacicio, and Patricia Ann Spinelli.

As a result of the occurrence, the survivors of the accident and the estate of John Gaffney commenced diverse causes of action against the Cassidy estate, the City of New York and the New York City Transit Authority. At or about the same time the Cassidy estate commenced an additional action against the city in which the New York City Transit Authority was joined as a third-party defendant. The actions were consolidated by order of the Supreme Court, Kings County, dated May 5, 1983, and, thereafter, proceeded to trial.

At trial it was established, inter alia, that the plaintiffs were injured when the Cassidy vehicle struck one of the pillars which support the elevated subway tracks in the vicinity of New Utrecht Avenue and 86th Street in Brooklyn. In addition, plaintiffs presented evidence in the form of an opinion by an expert in highway design that the placement of the subject pillar constituted an extreme hazard to traffic and that the unlighted warning and safety devices employed thereon were totally insufficient to warn motorists of its presence. The evidence adduced by the defendants tended to show that prior to the accident, certain safety features, including diamond-shaped hazard markers, had been installed on the subject pillar, that three surveys of the area had been conducted by the office of the borough engineer since 1972, and that a system of blinking hazard lights had been considered for installation by the borough engineer in 1977 but was rejected. Mere mention of surveys has no talismanic quality; the city did not produce the persons who took the surveys, nor were any written copies of the surveys offered in evidence. The city cannot rely on the doctrine of Weiss v. Fote, 7 N.Y.2d 579, 200 N.Y.S.2d 409, 167 N.E.2d 63, merely by submitting conclusory declarations that surveys were made without at least producing written copies or testimony by those who made the surveys. The former borough engineer did testify, however, that in his opinion certain of the additional safety measures suggested by the plaintiffs' expert would actually have increased the existing hazard and should never be used. As has already been indicated, the jury found in favor of the plaintiffs and against the city, and this appeal followed.

On appeal, the city argues, inter alia, that plaintiffs are barred from recovery under the doctrine of Weiss v. Fote (supra ), which generally exempts a municipality from liability for injuries arising...