Evers v. Westerberg

• Court: New York Supreme Court — Appellate Division
• Citation: Evers v. Westerberg, 38 A.D.2d 751, 329 N.Y.S.2d 615 (N.Y. App. Div. 1972)
• Decision Date: 31 January 1972
• Parties: Jeannine EVERS, individually, and as administratrix, etc., Respondent, v. Thomas W. WESTERBERG et al., Appellants, and Incorporated Village of Lynbrook Appellant-Respondent, et al., Defendants.

Page 615

329 N.Y.S.2d 615

38 A.D.2d 751

Jeannine EVERS, individually, and as administratrix, etc., Respondent, v. Thomas W. WESTERBERG et al., Appellants, and Incorporated Village of Lynbrook Appellant-Respondent, et al Defendants.

Supreme Court, Appellate Division, Second Department.

Jan 31, 1972.

Crofton & Powell, Mineola, Mulholland, Minion & Roe, Garden City, for respondent; Robert C. Minion, John F. Mulholland, Garden City, of counsel.

Simpson, Thacher & Bartlett, New York City, for appellant Village of Lynbrook; Roy L. Reardon, Joseph F. Dennin, John H. Lavely, Jr., New York City, of counsel.

Montfort, Healy, McGuire & Salley, Garden City, for appellants; E. Richard Rimmels, Jr., Ernest F. W. Wildermuth, Jr., Garden City, of counsel.

Before HOPKINS, Acting P.J., and SHAPIRO, GULOTTA, CHRIST and BENJAMIN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages (1) for personal injuries sustained by plaintiff and (2) for wrongful death and conscious pain and suffering of her husband, defendants Westerberg and the Incorporated Village of Lynbrook appeal from a judgment of the Supreme Court, Nassau County, entered November 25, 1970 against them and in favor of plaintiff upon a jury verdict, and defendants Westerberg further appeal from an order of the same court dated January 28, 1971, which resettled both said judgment and a prior order so as to dismiss said defendants' cross claims (except that, by their briefs, appellants are not appealing from so much of the judgment as is in favor of another defendant against plaintiff).

Judgment (as resettled) modified, on the law and the facts, by striking therefrom so much as is in favor of plaintiff against defendant Incorporated Village of Lynbrook and by dismissing the complaint as against said defendant. As so modified, resettled judgment affirmed insofar as appealed from, with costs to plaintiff against defendants Westerberg and with costs to defendant Incorporated Village of Lynbrook against plaintiff. The appeal from the order dated January 28, 1971 has been disposed of in the determination herein of the appeals from the judgment as resettled.

This action arose out of an automobile accident which occurred in Valley Stream, at about 1:50 A.M. on December 4, 1966, when an automobile driven by defendant Thomas Westerberg and owned by defendant Celeste Westerberg collided with a vehicle driven by John Evers, in which his wife (plaintiff) was a passenger, causing Evers' death. About 20 minutes earlier, the Westerberg vehicle had been involved in a rear-end collision with another automobile in the Village of Lynbrook. Although we find the verdict against the Westerbergs to be amply supported by the evidence, the same cannot be said of the verdict against the Village. Indeed, as to the latter, we hold that the trial court erred in refusing to dismiss the complaint.

The Village, through its police officers, made an investigation at the scene of the first accident in Lynbrook. It was charged with negligence, through one of its officers, for having failed to take Westerberg into custody on the ground of intoxication and/or impound his damaged vehicle or prevent him from driving it away from the scene. (Westerberg himself was taken into custody after the second, fatal accident, but released when found fit to drive a motor vehicle. The damage sustained to his automobile after the first accident consisted primarily of a bent right fender which allegedly rubbed against the right front tire.) Basically then, the complaint is that the Village failed to provide...