Fratello v. Cnty. of Suffolk

• Court: New York Supreme Court — Appellate Division
• Citation: Fratello v. Cnty. of Suffolk, 199 A.D.3d 760, 157 N.Y.S.3d 80 (N.Y. App. Div. 2021)
• Decision Date: 10 November 2021
• Docket Number: 2019–13264,Index No. 20536/06
• Parties: Joseph FRATELLO, respondent, v. COUNTY OF SUFFOLK, et al., appellants.

199 A.D.3d 760

157 N.Y.S.3d 80

Joseph FRATELLO, respondent,

v.COUNTY OF SUFFOLK, et al., appellants.

2019–13264

Index No. 20536/06

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

Argued—October 12, 2021

November 10, 2021

Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, NY (Randy S. Nissan and Peter Sullivan of counsel), for appellants.

Scott Lockwood, Deer Park, NY, for respondent.

HECTOR D. LASALLE, P.J., LEONARD B. AUSTIN, PAUL WOOTEN, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from a judgment of the Supreme Court, Suffolk County (John H. Rouse, J.), entered September 20, 2019. The judgment, upon a jury verdict, is in favor of the plaintiff and against the defendants in the principal sum of $150,000.

ORDERED that the judgment is affirmed, with costs.

On June 10, 2005, the plaintiff was operating a commercial van westbound on Montauk Highway in Bridgehampton. While the plaintiff was making a left turn into a parking lot, a bus operated by the defendant Thomas Wilson, and owned by the defendant County of Suffolk (hereinafter together the defendants), was traveling eastbound on the highway's shoulder when it collided with the van. Thereafter, the plaintiff commenced this personal injury action against the defendants. At the close of the liability phase of the trial, the jury found that the plaintiff was not negligent in the happening of the accident, and that Wilson's negligence was a substantial factor in causing the accident. At a trial on the issue of damages, the jury awarded the plaintiff the principal sum of $150,000. The defendants appeal from the judgment.

Contrary to the defendants’ assertion, the Supreme Court did not err in granting the plaintiff's request for a missing witness charge for the defendants’ failure to call Wilson at trial (see Morales v. Davidson Apts., LLC , 193 A.D.3d 719, 141 N.Y.S.3d 879 ; Ever Win, Inc. v. 1–10 Indus. Assoc., 111 A.D.3d 884, 886, 976 N.Y.S.2d 123 ; Taveras v. Martin , 54 A.D.3d 667, 668, 863 N.Y.S.2d 475 ). The defendants’ additional contention regarding the missing witness charge is unpreserved for appellate review since defense counsel failed to state any specific objection to the charge at trial, other than taking a general exception to it being given (see Verruso v. Bourget's Bike Works, Inc. , 67 A.D.3d 780, 887 N.Y.S.2d 864 ). Moreover, any contention by the defendants regarding the impropriety of certain summation comments made by the plaintiff's counsel regarding their failure to call Wilson at trial is unpreserved for appellate review (see Castillo v. MTA Bus Co. , 163 A.D.3d 620, 623, 80 N.Y.S.3d 426 ; Jean–Louis v. City of New York , 86 A.D.3d 628, 629, 928 N.Y.S.2d 310 ).

Contrary to the defendants’ contention, the Supreme Court did not err in declining their request to charge the jury on certain sections of the Vehicle and Traffic Law. " ‘A statute or regulation should be charged where there is evidence in the record to support a finding that the statute was violated ( Wilmot v. City of New York, 73 A.D.2d 201, 426 N.Y.S.2d 8 ) and the statute or regulation is applicable to the facts presented ( Enea v. Kuhn, Smith & Harris, Inc., 39 A.D.2d 908, 332 N.Y.S.2d 913 )’ " ( Rivera v....