Desouza v. Khan

• Decision Date: 13 May 2015
• Docket Number: 2014-03664
• Citation: 128 A.D.3d 756,11 N.Y.S.3d 168,2015 N.Y. Slip Op. 04085
• Parties: Fernanda DeSOUZA, appellant, v. AHAMMAD REJA KHAN, et al., respondents, et al., defendants.
• Court: New York Supreme Court — Appellate Division

128 A.D.3d 756

11 N.Y.S.3d 168

2015 N.Y. Slip Op. 04085

Fernanda DeSOUZA, appellant

v.AHAMMAD REJA KHAN, et al., respondents, et al., defendants.

2014-03664

Supreme Court, Appellate Division, Second Department, New York.

May 13, 2015.

William Schwitzer & Associates, P.C., New York, N.Y. (Linda Simmons and Andrea Arrigo of counsel), for appellant.

Phillip J. Rizzuto, P.C., Carle Place, N.Y. (Kristen N. Reed of counsel), for respondents.

REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and BETSY BARROS, JJ.

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of a judgment of the Supreme Court, Queens County (Weiss, J.), entered January 28, 2014, as, upon a jury verdict on the issue of liability finding that the defendant Ahammad Reja Khan was not negligent, and upon the denial of her motion pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of liability and for a new trial, is in favor of the defendants Ahammad Reja Khan and Korban Ali and against her, dismissing the complaint insofar as asserted against those defendants.

ORDERED that the judgment is reversed insofar as appealed from, on the law, with costs, that branch of the plaintiff's motion which was to set aside the jury verdict on the issue of liability and for a new trial is granted, the complaint is reinstated insofar as asserted against the defendants Ahammad Reja Khan and Korban Ali, and the matter is remitted to the Supreme Court, Queens County, for a new trial on the issue of liability as against those defendants.

While seated in the backseat of a taxicab, the plaintiff allegedly was injured when the taxicab struck the rear of another taxicab which was stopped for a red light on Broadway, at its intersection with West 64th Street, in Manhattan. The plaintiff commenced this action to recover damages for personal injuries against the operator and owner of the taxicab in which she was allegedly a passenger, the defendants Ahammad Reja Khan and Korban Ali, respectively, and against the operator and owner of the taxicab which was stopped at the red light, the defendants Mohammed S. Chowdhury and Alexander Kotlovsky, respectively.

In their answer, Ali and Khan admitted that they were the owner and operator, respectively, of a vehicle bearing a certain New York registration number and that their vehicle came into contact with the vehicle operated by Chowdhury on the date and at the place specified in the complaint. They denied knowledge or information sufficient to form a belief as to whether the plaintiff was a passenger in their vehicle, as she alleged in the complaint.

During the course of discovery, Khan and Ali failed to appear on numerous occasions for court-ordered depositions. Eventually, the Supreme Court issued a conditional order of preclusion that precluded Khan and Ali from testifying at trial unless they appeared for depositions no later than June 13, 2013. Neither of them appeared for a deposition by that date.

A jury trial was held on the issue of liability. The plaintiff testified on her own behalf and read portions of Chowdhury's deposition testimony into evidence. At the close of evidence, the Supreme Court granted Chowdhury's and Kotlovsky's motion pursuant to CPLR 4401 for judgment as a matter of law. The court denied the plaintiff's motion pursuant to CPLR 4401 for judgment as a matter of law, as well as Khan's and Ali's motion pursuant to CPLR 4401 for judgment as a matter of law.

During deliberations, the jury sent two notes to the Supreme Court. In the first note, the jurors asked if Khan was driving the taxicab in which the plaintiff was a passenger at the time of the accident; the court responded that...