Sherman v. City of New York

• Court: New York Supreme Court — Appellate Division
• Citation: Sherman v. City of New York, 614 N.Y.S.2d 412, 206 A.D.2d 272 (N.Y. App. Div. 1994)
• Decision Date: 14 July 1994
• Parties: Howard B. SHERMAN, as Executor of the Estate of Walter Rasby, Deceased, Plaintiff-Respondent, v. The CITY OF NEW YORK, Defendant-Appellant. and RAD Oil Transport Corp., et al., Defendants.

Page 412

614 N.Y.S.2d 412

206 A.D.2d 272

Howard B. SHERMAN, as Executor of the Estate of Walter Rasby, Deceased, Plaintiff-Respondent, v. The CITY OF NEW YORK, Defendant-Appellant and RAD Oil Transport Corp., et al., Defendants.

Supreme Court, Appellate Division First Department.

July 14, 1994.

Before MURPHY, P.J., and SULLIVAN, CARRO, WALLACH and ASCH, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, Bronx County (Douglas McKeon, J.), entered September 17, 1992, effective nunc pro tunc as of May 20, 1992 upon a jury verdict in favor of plaintiff, inter alia, apportioning liability 70% as against defendant City of New York and 30% as against defendants RAD Oil Transport Corp. and Charles Smith, and which reduced the award for future pain and suffering from $13,000,000 to $3,700,000 and the award for past pain and suffering from $3,000,000 to $1,100,000 upon plaintiff's stipulation in lieu of a new trial on damages, unanimously reversed, on the law, without costs, and the complaint is dismissed as against the City of New York. The Clerk is directed to enter judgment in favor of defendant-appellant dismissing and severing the complaint as against it.

On September 7, 1988 at approximately 5:30 p.m., when weather conditions were clear, dry and sunny, plaintiff's decedent's automobile collided with a truck driven by an employee of the defendant RAD Oil Transport Corporation at the intersection of East 137th Street and Willow Avenue in the Bronx. Decedent was driving west on East 137th Street at a speed of approximately 20 miles per hour. A stop sign ordinarily in place at the northeast corner of East 137th Street at the intersection of Willow Avenue, which would have controlled the progress of decedent's car, had been knocked down by a sanitation truck three weeks before the accident, and it had not been replaced.

Decedent was unfamiliar with the intersection and was unaware that there had been a stop sign at the corner. He slowed to 10 or 15 miles per hour as he approached the intersection, looked to his right, and saw the RAD Oil truck heading south five or six car lengths from the intersection. Instead of coming to a stop, or further decelerating, decedent testified that he accelerated his car to 20 miles per hour and proceeded into the intersection, while looking straight ahead and discontinuing his observation of the truck because "[t]hat truck was so far back and I didn't think there was any problem with it." Clearly, this was a gross miscalculation, because decedent's car struck the RAD truck approximately at midsection, behind the driver's cab. We note in this regard that decedent had lost all vision in his left eye nine years before the accident, apparently as a result of his suffering from diabetes for many years, and thus he did not have three-dimensional depth perception.

There was testimony at trial from an eyewitness that the RAD truck was traveling between 40 and 50 miles per hour on Willow Avenue at the time of the collision, apparently in excess of the speed limit. RAD and its driver Charles Smith settled with decedent for $3 million prior to summations. The jury returned a verdict in the amount of $20,658,599.38 in decedent's favor finding that negligence by the City and RAD's driver had proximately caused decedent's injuries, and apportioning liability 70 percent to the City and 30 percent to RAD and its driver. The jury found decedent completely free of negligence.

The City moved to dismiss the action, or alternatively to set aside the verdict as excessive and against the weight of the evidence. On March 19, 1992, the Trial Court granted the City's motion only to the extent of ordering a new trial on damages unless plaintiff consented to a reduction of the awards for past pain and suffering from $3,000,000 to $1,100,000, and future pain and suffering from $13,000,000 to $3,700,000, thereby producing a total reduced award of $9,534,855.70. Plaintiff's decedent died on May 25, 1992, two months after issuance of the Court's order conditionally reducing damages. The reduced award was incorporated into a judgment against the City entered on September 17, 1992, but made effective, nunc pro tunc, to May 20, 1992, five days before decedent's death.

We hold that upon the undisputed facts the City was not...