Schafer v. Standard Ry. Fusee Corp.

• Decision Date: 10 January 1994
• Citation: 200 A.D.2d 564,606 N.Y.S.2d 332
• Parties: Richard SCHAFER, Respondent, v. STANDARD RAILWAY FUSEE CORPORATION, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 332

606 N.Y.S.2d 332

200 A.D.2d 564

Richard SCHAFER, Respondent, v. STANDARD RAILWAY FUSEE CORPORATION, Appellant.

Supreme Court, Appellate Division,

Second Department.

Jan. 10, 1994.

Brody & Fabiani, New York City (Lawrence A. Beckenstein and Neil Brody, of counsel), for appellant.

Abbott, Bushlow & Pond, Ridgewood (Richard Schechner, of counsel), for respondent.

Before THOMPSON, J.P., and BALLETTA, O'BRIEN and SANTUCCI, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the defendant appeals from a judgment of the Supreme Court, Nassau County (Yachnin, J.), dated May 7, 1991, which, upon a jury verdict finding the defendant 80% at fault in the happening of the accident, is in favor of the plaintiff and against it in the principal sum of $15,000.

ORDERED that the judgment is affirmed, with costs.

Contrary to the defendant's claim, the Supreme Court properly denied its motion to dismiss based upon the plaintiff's alleged failure to prove a prima facie case. It is well settled that a motion pursuant to CPLR 4401 to dismiss for failure to establish a prima facie case should be granted only if there is no rational process by which a jury could find for a plaintiff and against a defendant upon the evidence presented (see, Kleinmunz v. Katz, 190 A.D.2d 657, 594 N.Y.S.2d 619; Hylick v. Halweil, 112 A.D.2d 400, 401, 492 N.Y.S.2d 57; Nicholas v. Reason, 84 A.D.2d 915, 447 N.Y.S.2d 55).

Viewing the plaintiff's evidence in a light most favorable to him (see, Kleinmunz v. Katz, supra; McCloud v. Marcantonio, 106 A.D.2d 493, 495, 483 N.Y.S.2d 31), we find that there was sufficient evidence from which a jury could rationally find that the defendant's highway flare was defective at the time it left the defendant's control (see, Winckel v. Atlantic Rentals & Sales, 159 A.D.2d 124, 126, 557 N.Y.S.2d 951; Hylick v. Halweil, supra; Coley v. Michelin Tire Corp., 99 A.D.2d 795, 472 N.Y.S.2d 125; Iadicicco v. Duffy, 60 A.D.2d 905, 906, 401 N.Y.S.2d 557).

Furthermore, the Supreme Court properly required further qualifications from the defendant's expert witness (see, Werner v. Sun Oil Co., 65 N.Y.2d 839, 840, 493 N.Y.S.2d 125, 482 N.E.2d 921; Hong v. County of Nassau, 139 A.D.2d 566, 527 N.Y.S.2d 66; Karasik v. Bird, 98 A.D.2d 359, 362, 470 N.Y.S.2d 605). Nor did the Supreme Court improvidently exercise its discretion in denying the defendant's applications to demonstrate a properly working highway flare or to admit its expert's slides into evidence (see, Uss v. Town of Oyster Bay, 37 N.Y.2d 639, 641, 376 N.Y.S.2d 449, 339 N.E.2d 147; Goldner v. Kemper Ins. Co., 152 A.D.2d 936, 937, 544 N.Y.S.2d 396; Glusaskas v. Hutchinson, 148 A.D.2d 203, 209, 544 N.Y.S.2d 323).

The Supreme Court also properly charged the jury that it could infer that a defect existed in the highway flare at the time it left the defendant's control (see, Halloran v. Virginia Chemicals, 41 N.Y.2d 386, 388, 393 N.Y.S.2d 341, 361 N.E.2d 991; Winckel v. Atlantic Rentals & Sales, 159 A.D.2d 124, 127, 557 N.Y.S.2d 951, supra; Shelden v. Hample Equip. Co., 89 A.D.2d 766, 767, 453 N.Y.S.2d 934; Fox v. Corning Glass Works, 81 A.D.2d 826, 438 N.Y.S.2d 602; 1 NY PJI 2:141.1, 2:141.2 [1992 Supp]. Any issue concerning the plaintiff's alleged misuse of the flare by lighting it while allegedly facing into the wind was relevant only to...