Odom v. Byrne
| Decision Date | 09 October 1984 |
| Citation | 104 A.D.2d 863,480 N.Y.S.2d 247 |
| Parties | Dorothy ODOM, etc., Respondent, v. Joseph A. BYRNE, et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City (Ronald E. Sternberg, New York City, and Dody Schorr, Jamaica, of counsel), for appellants.
Schneider, Kleinick & Weitz, New York City (Brian J. Shoot, New York City, of counsel), for respondent.
Before LAZER, J.P., and BRACKEN, WEINSTEIN and NIEHOFF, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages, inter alia, for wrongful death, defendants appeal from so much of a judgment of the Supreme Court, Kings County, entered April 15, 1983, as, after a nonjury trial, was in favor of the plaintiff in the principal sum of $72,000.
Judgment modified, on the facts, by adding a provision reapportioning the culpable conduct attributable to the parties at 50% to decedent and 50% to defendants, and by reducing the principal sum awarded plaintiff to $5,000. As so modified, judgment affirmed insofar as appealed from, without costs or disbursements, and matter remitted to the Supreme Court, Kings County, for entry of an appropriate amended judgment.
This action was brought to recover damages, inter alia, for the wrongful death of the decedent, Corey Odom, who was struck and killed by a police car owned by defendant City of New York and operated by defendant Joseph A. Byrne, a police officer. The undisputed evidence adduced at trial established that the accident occurred at approximately 11:00 P.M. on November 5, 1977, while Officer Byrne and his partner were proceeding on a one-way street, with two lanes for moving traffic, in response to a radio call for a "back-up". The roof lights on the police car were activated and the siren was sounding periodically. Both officers first saw decedent at a distance of about 200 feet, standing in the street and moving in an erratic manner. Although there were discrepancies in the officers' testimony regarding decedent's movements immediately prior to impact, it is clear that, at some point, decedent crossed the street in mid-block, from left to right, in front of the police car, and he was struck by the right front side of the car. It is also undisputed that an autopsy of decedent revealed a blood alcohol level of .36 of one percent by weight, and a brain alcohol level of .37 of one percent by weight, indicating symptoms ranging from a complete lack of perception and judgment to symptoms consistent with the onset of a coma.
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