Selkowitz v. Nassau County

• Decision Date: 25 July 1977
• Citation: 58 A.D.2d 888,396 N.Y.S.2d 885
• Parties: Roger SELKOWITZ et al., Respondents, v. COUNTY OF NASSAU, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 885

396 N.Y.S.2d 885

58 A.D.2d 888

Roger SELKOWITZ et al., Respondents, v. COUNTY OF NASSAU, Appellant.

Supreme Court, Appellate Division, Second Department.

July 25, 1977.

James M. Catterson, Jr., County Atty., Mineola (Natale C. Tedone and Joseph A. DeMaro, Mineola, of counsel), for appellant.

Block & Greene, New Rochelle (Morris Block, New Rochelle, of counsel), for respondents.

Before MARTUSCELLO, J. P., and RABIN, SUOZZI, MOLLEN and COHALAN, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, etc., defendant appeals from (1) an interlocutory judgment of the Supreme Court, Nassau County, dated May 7, 1976, which is in favor of the plaintiffs and against it, upon a jury verdict, on the issue of liability only and (2) an order of the same court, entered August 6, 1976, which denied its motion for a new trial on the basis of newly discovered evidence.

Interlocutory judgment and order affirmed, with one bill of costs to plaintiffs-respondents.

On May 7, 1972, at approximately 3 A.M., the Volkswagen automobile in which the plaintiffs were passengers was one of several cars which had stopped for a red light in the southbound lanes of Grand Avenue in Baldwin, Long Island, at the intersection with North William Street. At the same time, a speeding Lincoln automobile, which was being pursued by a Long Island State Parkway police officer, and was traveling south on Grand Avenue in the northbound lanes, veered into the southbound lanes and crashed into the automobiles waiting at the intersection. Police Officer Donley of the Nassau County Police Department, responding to a radio call to assist in the pursuit of the Lincoln, was proceeding north on Grand Avenue in the northbound lanes from a point south of the intersection with North William Street. The plaintiff testified that, shortly before the accident, Donley positioned his patrol car diagonally across the two northbound driving lanes alongside the stopped cars so that it blocked the path of the Lincoln. Donley testified that he had pulled over and stopped his car in the parking lane a few feet north of the intersection.

The trial court charged the jury on negligence generally, stating, inter alia :

"And with regard to the claimed negligence of the defendant, I charge you as follows: A police officer has the right and duty to use all reasonable means necessary to perform his duties. In discharging his duties, however, he is obligated to use due care. It is for you, the jury, to determine whether under all of the circumstances of this case, Patrolman Donley used reasonable care in operating his vehicle and performing his duties at the time of the accident. You must consider whether under all the circumstances present at that time he used due care and acted reasonably in the manner in which you find he positioned his police vehicle. If you find that he acted reasonably and exercised due care, then you would find that he was not negligent. Conversely, if you find that Patrolman Donley failed to act reasonably and exercise due care on the facts of this case, you will find him to have been negligent."

Pertinent portions of section 1104 of the Vehicle and Traffic Law, dealing with authorized emergency vehicles, were read to the jury and the jury was then instructed "If a reasonably prudent person could not foresee any injury as a result of his conduct or if his conduct was reasonable in the light of what he could foresee, there is no negligence. Conversely, there is negligence if a reasonably prudent person could foresee injury as a result of his conduct, and his conduct was unreasonable in the light of what he could foresee."

The main issue was one of credibility and was essentially a jury question. The charge, while not as detailed as might be desired, was adequate. The Trial Judge presented the issues fairly to the jury and the jury found for the plaintiffs.

The trial court's denial of the defendant's application for a new trial on the basis of newly discovered evidence constituted a proper exercise of discretion.

RABIN, SUOZZI and MOLLEN, JJ., concur.

MARTUSCELLO, J. P., concurs in the affirmance of the order, but otherwise dissents and votes to reverse the interlocutory judgment and to grant a new trial, with the following memorandum in which COHALAN, J., concurs:

On May 7, 1972, at about 3 A.M., a speeding Lincoln automobile which was being pursued by a Long Island...