Solomon v. Green Bay Sanitation Corp.

• Decision Date: 22 August 2018
• Docket Number: Index No. 502632/12,2016–10232
• Citation: Solomon v. Green Bay Sanitation Corp., 164 A.D.3d 854, 79 N.Y.S.3d 539(Mem) (N.Y. App. Div. 2018)
• Parties: Randy SOLOMON, appellant, v. GREEN BAY SANITATION CORP., et al., respondents.
• Court: New York Supreme Court — Appellate Division

164 A.D.3d 854

79 N.Y.S.3d 539 (Mem)

Randy SOLOMON, appellant,

v.GREEN BAY SANITATION CORP., et al., respondents.

2016–10232

Index No. 502632/12

Supreme Court, Appellate Division, Second Department, New York.

Submitted—March 26, 2018

August 22, 2018

Ogen & Sedaghati, P.C., New York, N.Y. (Eitan Alexander Ogen of counsel), for appellant.

Charles J. Siegel, New York, N.Y. (Heather M. Palmore of counsel), for respondents.

JOHN M. LEVENTHAL, J.P., SANDRA L. SGROI, HECTOR D. LASALLE, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Edgar G. Walker, J.), dated August 17, 2016. The order, insofar as appealed from, denied that branch of the plaintiff's motion pursuant to CPLR 4404(a) which was to set aside a jury verdict in favor of the defendants and against him on the issue of liability and for a new trial on that issue.

ORDERED that the order is affirmed insofar as appealed from, with costs.

This action arises out of a two-car motor vehicle accident in which a sanitation truck owned by the defendant Green Bay Sanitation Corp. (hereinafter Green Bay), and driven by the defendant Antonio G. Mar, allegedly struck the open door of the plaintiff's parked vehicle. At the close of evidence at trial, a charge conference was held. The plaintiff requested that the Supreme Court charge, inter alia, that a violation of speed restrictions codified in the Vehicle and Traffic Law and the Rules of the City of New York would constitute negligence (see PJI 2:26 ; Vehicle and Traffic Law § 1180[a] ; 34 RCNY 4–106). The court declined the plaintiff's request. The jury returned a verdict on the issue of liability in favor of the defendants. A judgment, based upon the jury verdict, was entered in favor of the defendants. Thereafter, the plaintiff moved, inter alia, to set aside the jury verdict and for a new trial, arguing, among other things, that the court erred in declining to submit the PJI 2:26 charge to the jury. The court denied that branch of the plaintiff's motion, and the plaintiff appeals.

We note that the plaintiff's appeal from the judgment was dismissed by a decision and order on motion of this Court dated July 5, 2017, for failure to timely perfect. While the plaintiff ordinarily would be precluded from relitigating the issues which could have been raised on the prior appeal (see Rubeo v. National Grange Mut. Ins. Co., 93 N.Y.2d 750, 754, 697 N.Y.S.2d 866, 720 N.E.2d 86 ; Bray v. Cox, 38 N.Y.2d 350, 353, 379 N.Y.S.2d 803, 342 N.E.2d 575 ), under the circumstances of this case, we exercise our discretion to determine the issues raised on the instant appeal (see Faricelli v. TSS Seedman's, 94 N.Y.2d 772, 774, 698 N.Y.S.2d 588, 720 N.E.2d 864 ; Saunders v. Tarsia, 124 A.D.3d 620, 620, 997 N.Y.S.2d 909 ; Ravina v. Hsing Hsung Chuang, 95 A.D.3d 1288, 1288–1289, 945 N.Y.S.2d 411 ).

" ‘A statute or regulation should be charged where there is evidence in the record to support a finding that the statute was violated ( Wilmot v. City of New York, 73 A.D.2d 201, 204, 426 N.Y.S.2d 8 ) and the statute or regulation is applicable to the facts presented ( Enea v. Kuhn, Smith & Harris, 39 A.D.2d 908, 332 N.Y.S.2d 913 )’ " ( Rivera v. Americo, 9 A.D.3d 356, 357, 780 N.Y.S.2d 27, quoting Gamar v. Gamar, 114 A.D.2d 487, 488–489, 494 N.Y.S.2d 402 ). "The failure to charge a statutory violation warrants reversal where a reasonable view of the evidence could support the finding that such violation was a proximate cause of the accident" ( Rivera v. Americo, 9 A.D.3d at 357, 780 N.Y.S.2d 27 ; see Cranston v. Oxford Resources Corp., 173 A.D.2d 757, 758–759, 571 N.Y.S.2d 733 ; Cordero v. City of New York, 112 A.D.2d 914, 916, 492 N.Y.S.2d...