Rosenberg v. Rixon

Decision Date24 June 1985
Citation490 N.Y.S.2d 807,111 A.D.2d 910
PartiesMarla ROSENBERG, et al., Appellants-Respondents, v. Irving E. RIXON, et al., Respondents-Appellants, Kenneth J. Einhart, Respondent.
CourtNew York Supreme Court — Appellate Division

Gandin, Schotsky & Rappaport, P.C., Melville (Robert A. Katz and Michael I. Gandin, Melville, of counsel), for appellants-respondents.

Wollerstein & Futoran, Brooklyn (Norman Bard, Brooklyn, of counsel), for respondents-appellants.

Benjamin Purvin, Lake Success (William F. Larkin, New York City, of counsel), for respondent.

Before MOLLEN, P.J., and MANGANO, GIBBONS and BRACKEN, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, etc., plaintiffs appeal from a judgment of the Supreme Court, Nassau County (Roncallo, J.), dated December 31, 1982, which, upon a verdict after trial on the issue of liability only finding defendants Irving E. Rixon (hereinafter Rixon) and Capgro Leasing Corp. (hereinafter Capgro) 30% at fault in the happening of the accident and defendant Kenneth J. Einhart (hereinafter Einhart) 70% at fault, and upon a jury verdict in favor of the defendants and against plaintiffs after a trial on the issue of damages, in effect, dismissed their complaint. The defendants Rixon and Capgro cross appeal from so much of the judgment as is entered upon the jury's apportionment of fault after trial on the issue of liability.

Cross appeal dismissed. Defendants Rixon and Capgro are not aggrieved by the judgment since it dismisses plaintiffs' complaint as against them (CPLR 5511). The jury's apportionment of fault after trial on the issue of liability is brought up for review and has been reviewed on the plaintiffs' appeal from the judgment (CPLR 5501[a][1]; Parochial Bus Systems v. Board of Educ., 60 N.Y.2d 539, 544-45, 470 N.Y.S.2d 564, 458 N.E.2d 1241).

On plaintiffs' appeal judgment modified, on the law, by deleting therefrom the provisions which are in favor of the defendants and against the plaintiff Marla Rosenberg and severing the first cause of action, asserted by said plaintiff from the remaining derivative cause of action asserted by plaintiff Arlene Rosenberg. As so modified, judgment affirmed, without costs or disbursements, and the severed action of plaintiff Marla Rosenberg is remitted to the Supreme Court, Nassau County, for a new trial limited to the issue of damages only. The findings of fact on the issue of liability are affirmed.

In this case a bifurcated jury trial was held on the issues of liability and damages. With respect to the issue of liability, it cannot be said upon this record that the evidence was so heavily weighted against the plaintiffs that the jury could not have reached the verdict in their favor upon any fair interpretation of the evidence (see, Cohen v. Hallmark Cards, 45 N.Y.2d 493, 410 N.Y.S.2d 282, 382 N.E.2d 1145; Lincoln v. Austic, 60 A.D.2d 487, 491, 401 N.Y.S.2d 1020, lv. denied 44 N.Y.2d 644, 405 N.Y.S.2d 1028, 377 N.E.2d 488). Although there was conflicting evidence concerning the details of the accident, the credibility of the witnesses and the accuracy of their testimony were issues for the jury to determine (Roveda v. Weiss, 11 A.D.2d 745, 746, 204 N.Y.S.2d 699). The jury's apportionment of fault between the defendants is supported by the evidence.

With respect to the issue of damages, plaintiff claimed that as a result of the accident, ...

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10 cases
  • Altman v. Alpha Obstetrics and Gynecology, P.C.
    • United States
    • New York Supreme Court — Appellate Division
    • November 2, 1998
    ..."the credibility of the witnesses and the accuracy of their testimony were issues for the jury to determine" (Rosenberg v. Rixon, 111 A.D.2d 910, 911, 490 N.Y.S.2d 807; see, Panzarino v. Carella, supra). Similarly, while the mother expressed some uncertainty during cross-examination as to t......
  • Panzarino v. Carella
    • United States
    • New York Supreme Court — Appellate Division
    • February 17, 1998
    ..."the credibility of the witnesses and the accuracy of their testimony were issues for the jury to determine" (Rosenberg v. Rixon, 111 A.D.2d 910, 911, 490 N.Y.S.2d 807). The defendant's objections to the conclusions testified to by the plaintiff's expert at trial are unpreserved for appella......
  • Niedelman v. Jacoby
    • United States
    • New York Supreme Court — Appellate Division
    • February 9, 1987
    ...The court's charge was therefore proper (see, Green v. Downs, 27 N.Y.2d 205, 316 N.Y.S.2d 221, 265 N.E.2d 68; Rosenberg v. Rixon, 111 A.D.2d 910, 490 N.Y.S.2d 807). We also find no error in the court's charge on the issue of infancy (see, 1 NY PJI 2:23, 2:48). In any event, the plaintiffs f......
  • Green v. Meyer
    • United States
    • New York Supreme Court — Appellate Division
    • October 7, 1985
    ...presented factual questions concerning the negligence of the defendant driver for determination by the jury (see, Rosenberg v. Rixon, (App.Div.) 490 N.Y.S.2d 807; Vadala v. Carroll, 91 A.D.2d 865, 458 N.Y.S.2d 382, affd. 59 N.Y.2d 751, 463 N.Y.S.2d 432, 450 N.E.2d 238; Pfaffenbach v. White ......
  • Request a trial to view additional results

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