Rubin v. Pecoraro

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before BRACKEN
• Citation: Rubin v. Pecoraro, 529 N.Y.S.2d 142, 141 A.D.2d 525 (N.Y. App. Div. 1988)
• Decision Date: 06 June 1988
• Parties: Isidore RUBIN, et al., Respondents, v. Salvatore PECORARO, Defendant, Joseph Balutis, Appellant.

Page 142

529 N.Y.S.2d 142

141 A.D.2d 525

Isidore RUBIN, et al., Respondents, v. Salvatore PECORARO, Defendant, Joseph Balutis, Appellant.

Supreme Court, Appellate Division Second Department.

June 6, 1988.

McCormick, Dunne & Foley, New York City (Patrick F. Foley, Patricia D'Alvia and Andrea M. Alonso, on the brief), for appellant.

Gewurz & Gewurz, New York City (Martin S. Rothman, Eric Gewurz, Eileen R. Seligson and Alyne I. Diamond, on the brief), for respondents.

Before BRACKEN, J.P., and BROWN, LAWRENCE and SPATT, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, etc., the defendant Joseph Balutis appeals from an order of the Supreme Court, Kings County (Vinick, J.), dated June 8, 1987, which, after a trial on the issue of liability only, granted the plaintiffs' motion to set aside a verdict in his favor and granted a new trial.

ORDERED that the order is reversed, on the law and the facts, with costs, the verdict in favor of the defendant Balutis is reinstated, and the matter is remitted to the Supreme Court, Kings County, for entry of an appropriate judgment.

On November 28, 1984, in the early afternoon, the plaintiff Isidore Rubin was walking on Broadway in the Borough of Brooklyn when he attempted to cross that street some distance from its intersection with Havemeyer Street. The defendant Joseph Balutis, accompanied by his wife, was driving his motor vehicle in an easterly direction on Broadway when the car came in contact with the plaintiff Isidore Rubin, causing him to fall and sustain personal injuries. At trial, the injured plaintiff testified that although he had looked both ways before he crossed, he did not see the appellant's car before impact "because the car was in a speed". The appellant driver and his wife both testified that the injured plaintiff came from between parked cars, and, without looking in the direction of the appellant's car, walked into the right passenger door and fell to the ground. The Trial Judge charged the jury regarding the respective duties of the appellant and the injured plaintiff and submitted to the jury the law as set forth in Vehicle and Traffic Law §§ 1152 and 1154 and New York City Traffic Regulations §§ 52A and 52C. There was no exception to the charge. Without objection, the court submitted written interrogatories to the jury separately inquiring as to negligence and proximate cause with regard to the appellant and the injured plaintiff. The charge on the law and the makeup of the written interrogatories constitute the law of this case ( see, Freidus v. Eisenberg, 71 N.Y.2d 981, 529 N.Y.S.2d 69, 524 N.E.2d 423 [1988]; Martin v. City of Cohoes, 37 N.Y.2d 162, 165, 371 N.Y.S.2d 687, 332 N.E.2d 867). The jury found that the appellant was negligent but also found that his negligence was not a proximate cause of the accident. The court determined that this verdict was "hopelessly irreconcilable, and logically impossible", set it aside and granted a new trial. We disagree.

A contention that a verdict is inconsistent and irreconcilable must be reviewed in the context of the court's charge ( Lundgren v. McColgin, 96 A.D.2d 706, 464 N.Y.S.2d 317). Further, "[w]here the verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view" ( Koopersmith v. General Motors Corp., 63 A.D.2d 1013, 1014, 406 N.Y.S.2d 358, lv. denied 46 N.Y.2d 705, 413 N.Y.S.2d 1026, 385 N.E.2d 1303).

In this case, the jury could reasonably have found that the injured plaintiff attempted to cross the street between parked cars and, without looking, walked into the right side of the appellant's car. Further, the jury could reasonably have found that although the appellant...