Costalas v. City of New York

• Decision Date: 13 October 1988
• Citation: 143 A.D.2d 573,532 N.Y.S.2d 868
• Parties: Georgia COSTALAS, etc. et al., Plaintiffs-Appellants, v. The CITY OF NEW YORK, et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 868

532 N.Y.S.2d 868

143 A.D.2d 573

Georgia COSTALAS, etc. et al., Plaintiffs-Appellants, v. The CITY OF NEW YORK, et al., Defendants-Respondents.

Supreme Court, Appellate Division,

First Department.

Oct. 13, 1988.

P.F. McAloon, New York City, for plaintiffs-appellants.

E. Dvorkin, New York City, for defendants-respondents.

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

MEMORANDUM BY THE COURT.

Judgment, Supreme Court, New York County (Edward H. Lehner, J., and a jury), entered July 31, 1987, which, after presentation of plaintiffs' direct case, granted defendants' motion to dismiss the complaint, is unanimously reversed, on the law and the facts, judgment vacated, motion denied, complaint reinstated, and the matter remanded for a new trial, without costs.

During the evening of March 4, 1982, while Mr. George Costalas was driving a Volkswagen, he was killed in an accident, which allegedly involved a New York City Sanitation truck. When he died, Mr. Costalas was 33 years old, married, and the father of two sons, ages 5 and 8.

In November 1982, Mrs. Georgia Costalas, individually, and, as administratrix of the estate of Mr. Costalas, and, as natural guardian of their two infant children, commenced, in the Supreme Court, New York County, an action against the City of New York, the New York City Sanitation Department, and "John Doe" (defendants) to recover damages for the alleged wrongful death of Mr. Costalas.

Following the joinder of issue, a jury trial took place in May 1987. The plaintiff's evidence concerning the defendants' liability consisted primarily of the testimony of Mr. George Rivera (Mr. Rivera).

Mr. Rivera testified that shortly after 9:00 P.M., on March 4, 1982, he was a passenger in an automobile (Rivera car) which was being operated by Mr. David Alvarez, his brother-in-law. The Rivera car was on 53rd Street in Kings County, and it was headed west toward Fourth Avenue. As the Rivera car approached the intersection of 53rd Street and Fourth Avenue, it halted immediately behind a New York City Sanitation truck (truck), which was stopped "in the middle of the intersection, past the white line" (see, Record on Appeal (RA), at 72). Since the truck blocked his view, Mr. Rivera could not see the traffic light (light), which hung overhead.

Furthermore, Mr. Rivera testified that, at the time the truck started to move westward, at about 10 miles per hour, he noticed the light was red. However, by the time the Rivera car had made a right turn, north onto Fourth Avenue, the light had turned green. After the Rivera car had gone approximately two car lengths into Fourth Avenue, Mr. Rivera for the first time noticed Mr. Costalas' Volkswagen (Volkswagen), traveling, at approximately 35 miles per hour, southward on Fourth Avenue, in a drizzling rain, towards 53rd Street. The Volkswagen proceeded into the intersection against a red light.

Thereafter, Mr. Rivera heard a loud sound, which caused him to look back, and, he saw "the ... truck put its brakes on, and I ... [saw] the Volkswagen trying to swerve around ... [the truck]. All ... [the Volkswagen] had was one lane, because ... [the truck] was blocking two lanes ... [The Volkswagen] tried to go around the ... truck ... to the one open lane. That's when ... [the Volkswagen] went into a spin and hit the pole" (see, RA, at pages 75-76) [material in brackets added]. He did not see the truck and Volkswagen come into contact with each other. Following the crash, the truck continued to proceed west on 53rd Street.

After the plaintiff rested, the Trial Court granted defendants' motion to dismiss the complaint, upon the ground that, as a matter of law, the plaintiff had failed to establish a prima facie case.

It is the law of this State that a driver of a motor vehicle must exercise "the requisite degree of reasonable care notwithstanding the invitation to proceed by the green light facing ... [him] (see, Shea v. Judson, 283 N.Y. 393, 398, 28 N.E.2d 885; Talay v. Del Vicario, 74 A.D.2d 601, 424 N.Y.S.2d 510; 1 NY PJI 2d 2:79) ..." (Klayman v. City of New York, 130 A.D.2d 551, 554, 515 N.Y.S.2d 285 (1987)) [material in brackets added]. Pursuant to the doctrine of comparative negligence (CPLR § 1411), which was adopted in this State in 1975, a driver, who proceeds in the face of a green light, may be found partially...