Sample v. Temkin
| Decision Date | 23 August 2011 |
| Docket Number | 2010-08341,Index No. 31480/05 |
| Parties | Marianne Sample, appellant, v. Alexander Temkin, et al., respondents. |
| Court | New York Supreme Court — Appellate Division |
REINALDO E. RIVERA, J.P.
JOSEPH COVELLO
ANITA R. FLORIO
Bergman, Bergman, Goldberg & Lamonsoff, LLP, Mineola, N.Y.(Nicholas Hurzeler and Gregory S. N.Y. (Dena Katsougrakis and Allen Goldberg of counsel), for appellant.
Lewis Brisbois Bisgaard & Smith, LLP, New York, Katz of counsel), for respondents.
In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Schack, J.), dated August 2, 2010, which, after a jury trial, denied her motion to set aside the verdict in favor of the defendants and against her on the issue of liability.
ORDERED that the order is affirmed, with costs.
On August 28, 2005, a vehicle owned and operated by Marianne Sample (hereinafter the appellant) collided with a vehicle owned by Exclusive Ambulette Service, Inc., and operated by Alexander Temkin (hereinafter together the ambulette defendants). The appellant commenced this action (hereinafter the Sample action) against the ambulette defendants to recover damages for personal injuries and property damage to her vehicle. Subsequently, Tsilya Gleyzer and Izya Kneper, Gleyzer's husband, commenced a separate action (hereinafter the Gleyzer action) against the appellant and the ambulette defendants to recover damages for personal injuries they allegedly sustained as passengers in the ambulette defendants' vehicle at the time of the collision. By order dated June 6, 2007, the Supreme Court joined the actions for trial.
Kneper died in July 2008, and no legal representative was substituted for him in the Gleyzer action prior to trial. In July 2009, during the joint trial, the parties were advised of Kneper's death. A settlement agreement was reached with respect to the Gleyzer action, but the appellant rejected a settlement offer with respect to the Sample action. Thereafter, the jury returned a verdict in the Sample action in favor of the ambulette defendants and against the appellant on the issue of liability, finding that the appellant's negligence was the sole proximate cause of the accident.
Approximately five months after the jury returned its verdict in the Sample action, the appellant moved to set aside the verdict on the ground that because no representative had been substituted for Kneper at the time the verdict was returned, Kneper's death had rendered the verdict a nullity. The Supreme Court denied the appellant's motion, and we affirm.
Contrary to the appellant's contention, the verdict in the Sample action was not rendered a nullity by virtue of the fact that no representative was substituted for Kneper, a plaintiffin the Gleyzer action, at the time the verdict was returned. Kneper was not a party in the Sample action, and although the actions were joined for trial, they were not consolidated into a single action (see CPLR 602[a]; Alizio v Perpignano, 78 AD3d 1087, 1087-1088). "A joint trial preserves the integrity of the several actions, requires a separate decision or verdict, as the case may...
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