Prager v. Motor Vehicle Acc. Indemnification Corp.

• Decision Date: 10 March 1980
• Citation: 425 N.Y.S.2d 631,74 A.D.2d 844
• Parties: Betty PRAGER, as administratrix, etc., Appellant-Respondent, v. MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION, Respondent-Appellant, and the City of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 631

425 N.Y.S.2d 631

74 A.D.2d 844

Betty PRAGER, as administratrix, etc., Appellant-Respondent, v. MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION Respondent-Appellant and the City of New York, Respondent.

Supreme Court, Appellate Division, Second Department.

March 10, 1980.

John J. Napolitano, Ozone Park (Philip P. Dondi, Ozone Park, of counsel), for appellant-respondent.

Donovan, Maloof, Walsh & Kennedy, New York City (Thomas P. Parry, New York City, of counsel), for respondent-appellant.

Allen G. Schwartz, Corp. Counsel, New York City (Marjorie E. Bornes, Flushing, and Ronald E. Sternberg, New York City, of counsel), for respondent.

Before DAMIANI, J. P., and GIBBONS, GULOTTA and MARGETT, JJ.

MEMORANDUM BY THE COURT.

In a wrongful death action, in which the jury had returned a verdict in favor of plaintiff against both defendants, plaintiff and defendant Motor Vehicle Accident Indemnification Corporation (MVAIC) separately appeal from a judgment of the Supreme Court, Kings County, entered August 2, 1978, which (1) dismissed the complaint as to the defendant City of New York upon the trial court's setting aside of the verdict against it and (2) awarded plaintiff judgment against MVAIC.

Judgment reversed, on the law, complaint dismissed as to MVAIC, the verdict in favor of plaintiff and against the City of New York is reinstated, and the action is remitted to Trial Term for entry of an appropriate judgment. Costs are awarded to the plaintiff-appellant only, payable by the city.

At approximately 5:00 P.M. on November 21, 1975, Harry Prager attempted to cross from the west to the east side of Flatbush Avenue at its intersection with Avenue I in Kings County. The traffic lights at the intersection had not been working for perhaps as much as four hours. After he had proceeded to the middle of Flatbush Avenue, a car traveling southbound on said avenue at 35 to 40 miles per hour struck him and left the scene. Prager ultimately died from the injuries he sustained.

This action was commenced against MVAIC, which stands in the place of the hit-and-run driver, and the city, which allegedly was negligent in failing to repair the traffic lights or to take other precautions to govern the flow of traffic.

At the trial, testimony was presented which showed that on the night in question it was dark and raining. At the hour that the accident occurred traffic was usually heavy at the subject location. The traffic light had stopped functioning from two to four hours before the accident and there had been a number of near accidents. When the traffic lights were in operation traffic usually traveled more slowly because cars would make left turns on the green light.

The jury's verdict, which was in the form of answers to special questions, was that the city had constructive notice of the traffic light outage and that the outage was a...