Fox v. Lyte

• Decision Date: 19 September 1988
• Citation: 143 A.D.2d 390,532 N.Y.S.2d 432
• Parties: Joseph FOX, Plaintiff-Respondent, v. David LYTE, et al., Defendants Third-Party Plaintiffs-Appellants; The City of New York, Third-Party Defendant-Respondent, et al., Third-Party Defendants.
• Court: New York Supreme Court — Appellate Division

Page 432

532 N.Y.S.2d 432

143 A.D.2d 390

Joseph FOX, Plaintiff-Respondent, v.David LYTE, et al., DefendantsThird-Party Plaintiffs-AppellantsThe City of New York, Third-Party Defendant-Respondent, et al., Third-Party Defendants.

Supreme Court, Appellate Division Second Department.

Sept. 19, 1988.

Montfort, Healy, McGuire & Salley, Mineola (E. Richard Rimmels, Jr., and Raymond J. Geoghegan, of counsel), for defendantthird-partyplaintiff-appellant Lyte.

William E. Jerome, New York City(James M. McLaughlin, Jr., of counsel), for defendantsthird-partyplaintiffs-appellantsManhattan and Queens Fuel Corp.

Morris J. Eisen, P.C., New York City(Irving N. Selkin, of counsel), for plaintiff-respondent.

Before KUNZEMAN, J.P., and EIBER, KOOPER and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the defendants Lyte appeal from an interlocutory judgment of the Supreme Court, Queens County(Flug, J.), dated January 7, 1987, which, upon a jury verdict on the issue of liability only, found them 40% at fault in the happening of the accident, found the defendantManhattan and Queens FuelCorp. 60% at fault in the happening of the accident and absolved the third-party defendantCity of New York of all liability in the happening of the accident, and the defendantManhattan and Queens Fuel Corp. separately appeals, as limited by its brief, from so much of the same judgment as found it to be 60% at fault in the happening of the accident.

ORDERED that the appeal by the defendants third-partyplaintiffs Lyte from so much of the interlocutory judgment as absolved the City of New York of all liability is dismissed (see, CPLR 5511); and it is further,

ORDERED that the interlocutory judgment is modified, as a matter of discretion, by deleting the first and third decretal paragraphs thereof; as so modified, the interlocutory judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for a new trial of the plaintiff's causes of action against the defendants Lyte and the defendantManhattan and Queens Fuel Corp., and the defendants Lyte's claims against Manhattan and Queens Fuel Corp.; and it is further,

ORDERED that the defendants Lyte and Manhattan and Queens Fuel Corp., appearing separately and filing separate briefs, are awarded one bill of costs, payable by the plaintiff.

At approximately 8:30 P.M. on the rainy night of April 14, 1980, a gasoline truck owned by the defendantManhattan and Queens Fuel Corp.(hereinafter M & Q) overturned on the Long Island Expressway near the Maurice Avenue exit in Queens and burst into flames.It appears that gasoline leaked onto portions of the roadway.The truck was operated by M & Q's employee, Martin Diaz, who, although named as a partydefendant, was never served with a summons and complaint.The evidence indicates that Diaz's wife may have been a passenger in the truck, in violation of a New York State Department of Transportation regulation which prohibits drivers of certain vehicles from transporting persons other than employees without the written authorization of the motor carrier under whose authority the motor vehicle is being operated (see, 17 NYCRR 820.11, incorporating by reference 49 CFR 392.60).

Firefighters who responded to the scene used water and foam to control and ultimately extinguish the fire.Police closed the highway to traffic in the immediate area of the accident and traffic, guided by cones placed on the highway, was detoured to the Maurice Avenue exit.Four and a half hours after the original accident and more than two hours after the fire was extinguished, a car driven by the defendantDavid Lyte, who testified that his speed was approximately 40 to 45 miles per hour, allegedly skidded, went out of control and through the cones, and struck a police patrol car in which the plaintiff, a police detective who had responded to the scene some two hours before, was seated.The plaintiff, inter alia, sues the defendants Lyte and M & Q to recover for injuries sustained in that collision.The defendant M & Q impleaded the third-party defendant the City of New York, apparently because of its alleged negligence in leaving foam, water and gasoline on the roadway.The defendants Lyte interposed no claim against the city, which has not appeared on this appeal.

We do not agree with M & Q that the evidence was legally insufficient to support a finding of liability as against it ( see, O'Boyle v. Avis Rent-A-Car System, 78 A.D.2d 431, 438-439, 435 N.Y.S.2d 296).According to an accident report admitted into evidence, Mr. Diaz, who did not testify at trial, stated that the truck skidded on wet pavement, causing him to lose control of the truck, hit the curb and flip over.This account is sufficient to give rise to an inference of negligence ( see, Pfaffenbach v. White Plains Express Corp., 17 N.Y.2d 132, 269 N.Y.S.2d 115, 216 N.E.2d 324;see also, Coury v. Safe Auto Sales, 32 N.Y.2d 162, 344 N.Y.S.2d 347, 297 N.E.2d 88).Although the evidence was conflicting as to whether the Lyte vehicle skidded because of the presence of gasoline spilled from the M & Q truck, because of the foam and water left by the firefighters, because of a wet and slippery condition caused by rain, or solely because of negligence attributable to the defendants Lyte, a fair interpretation of the evidence could support a conclusion that the presence of gasoline was at least one of the causes.Nor can it be said that, as a matter of law, events subsequent to the original accident were so extraordinary and, in the ordinary course of events, not foreseeable, so as to break the causal nexus between negligence on the part of Diaz and the collision giving rise to the plaintiff's injuries ( see, Derdiarian v. Felix Contr....