Smalley v. McCarthy
| Decision Date | 26 October 1998 |
| Parties | 1998 N.Y. Slip Op. 9409 Linda SMALLEY, Plaintiff-Respondent, v. August McCARTHY, et al., Appellants, William A. Humphreys, Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Mark A. Longo, Brooklyn (Steven J. Mines, of counsel), for appellants.
Livoti, Bernstein & Moraco, New York City (Benjamin Robinson and Barry Bernstein, of counsel), for plaintiff-respondent.
James A. McCarthy, P.C. (Majewski & Poole, LLP, Garden City [Michael Majewski and Nicole Norris Poole], of counsel), for defendant-respondent.
Before RITTER, J.P., and THOMPSON, PIZZUTO and McGINITY, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, the defendants August McCarthy and Kathleen A. McCarthy appeal from (1) a decision of the Supreme Court, Kings County (Archer, J.), dated October 6, 1997, and (2) an order of the same court, dated October 10, 1997, which, sua sponte, set aside a jury verdict in their favor and ordered a new trial.
ORDERED that the respondents are awarded one bill of costs.
The trial court's decision to set aside the jury verdict finding that the defendant Kathleen A. McCarthy was not negligent in the operation of her automobile and to order a new trial was not erroneous since such a finding could not be reached "on any fair interpretation of the evidence" (Nicastro v. Park, 113 A.D.2d 129, 134, 495 N.Y.S.2d 184). Ms. McCarthy testified that she did not see the plaintiff's car approaching the intersection from the opposite direction, and did not yield the right-of-way in accordance with Vehicle and Traffic Law § 1141. Thus, Ms. McCarthy was negligent in either failing to see that which under the facts and circumstances she should have seen, or in crossing in front of the plaintiff's vehicle when it was hazardous to do so (see, Spells v. Lewis, 197 A.D.2d 888, 889, 604 N.Y.S.2d 855; Burns v. Mastroianni, 173 A.D.2d 754, 755, 570 N.Y.S.2d 629; Hernandez v. Joseph, 143 A.D.2d 632, 533 N.Y.S.2d 13; Lester v. Jolicofur,...
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