Sullivan v. Locastro

• Decision Date: 16 December 1991
• Citation: 577 N.Y.S.2d 631,178 A.D.2d 523
• Parties: Mary SULLIVAN, etc., et al., Respondents, v. Joseph LOCASTRO, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 631

577 N.Y.S.2d 631

178 A.D.2d 523

Mary SULLIVAN, etc., et al., Respondents, v. Joseph LOCASTRO, et al., Appellants.

Supreme Court, Appellate Division,

Second Department.

Dec. 16, 1991.

Leahey & Johnson, P.C., New York City (Michael Conforti, of counsel), for appellants Joseph Locastro and Ronald A. Marino.

Albert C. Cosenza, Brooklyn (Lawrence A. Silver, of counsel), for appellants New York City Transit Authority and Metropolitan Transp. Authority.

Sol Zepnick, New York City (Norman E. Frowley, of counsel), for respondents.

Before BRACKEN, J.P., and HARWOOD, EIBER and O'BRIEN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries and wrongful death, etc., the defendants appeal from a judgment of the Supreme Court, Queens County (Durante, J.), entered August 2, 1989, which, upon a jury verdict, (1) is in favor of the plaintiff Mary Sullivan, as Administratrix of the Estate of Patrick Sullivan, and against the defendants in the principal sum of $3,058,000 ($8,000 for wrongful death, $2,500,000 for conscious pain and suffering, and $550,000 for loss of earnings), (2) is in favor of the plaintiff James P. Sullivan and against the defendants in the principal sum of $634,000 ($20,000 for medical expenses, $174,000 for hospital expenses, $200,000 for nursing expenses, and $240,000 for therapy expenses), and (3) directed the defendants New York City Transit Authority and Metropolitan Transportation Authority to pay interest of 9% per year on the awards to the plaintiff from April 7, 1989, the date of the verdict.

ORDERED that the judgment is modified, on the law and the facts and as a matter of discretion, (1) by deleting the first decretal paragraph thereof in favor of the plaintiff Mary Sullivan, as Administratrix of the Estate of Patrick Sullivan, in the principal sum of $8,000 for wrongful death, (2) by deleting the second decretal paragraph thereof in favor of the plaintiff Mary Sullivan, as Administratrix of the Estate of Patrick Sullivan, in the principal sum of $3,050,000, unless the plaintiff Mary Sullivan, as Administratrix of the Estate of Patrick Sullivan, serves and files in the office of the Clerk of the Supreme Court, Queens County, a written stipulation consenting to decrease the award for damages for conscious pain and suffering from the principal sum of $2,500,000 to the principal sum of $1,500,000 and to the entry of an amended judgment in her favor in the principal sum of $1,500,000, for conscious pain and suffering, and (3) deleting the provisions thereof awarding interest of 9% per year from April 7, 1989, payable by the defendants Metropolitan Transportation Authority and New York City Transit Authority, and substituting therefor provisions awarding interest of 3% per year from April 7, 1989, payable by the defendants Metropolitan Transportation Authority and New York City Transit Authority; as so modified, the judgment is affirmed, with one bill of costs to the plaintiffs; and it is further,

ORDERED that plaintiff Mary Sullivan's time to serve and file a stipulation is extended until 20 days after service upon her of a copy of this decision and order, with notice of entry; and it is further,

ORDERED that in the event that Mary Sullivan so stipulates, then the matter is remitted to the Supreme Court, Queens County, for (1) a new trial with respect to the claims for damages for wrongful death and loss of earnings, and (2) the entry of an appropriate amended judgment in favor of the plaintiff Mary Sullivan in the principal sum of $1,500,000 for conscious pain and suffering, and in favor of the plaintiff James P. Sullivan, with the interest assessed against the New York City Transit Authority and the Metropolitan Transportation Authority limited to 3% per annum; and it is further,

ORDERED that in the event that Mary Sullivan fails to so stipulate, then the matter is remitted to the Supreme Court, Queens County, for (1) a new trial with respect to the claims for damages for wrongful death, conscious pain and suffering, and loss of earnings, and (2) the entry of an appropriate amended judgment in favor of the plaintiff James P. Sullivan, with the interest assessed against the New York City Transit Authority and the Metropolitan Transportation Authority limited to 3% per annum.

At about 8:00 A.M. on October 8, 1982, 14-year old Patrick Sullivan and his schoolmate, Vincent Corrado, stepped off the curb on the east side of Francis Lewis Boulevard, 29 feet from its intersection with 33rd Avenue in Queens, intending to cross to the southwest side of the intersection in order to take a bus to school. An empty New York City bus was parked on the east side of Francis Lewis Boulevard, south of where the boys were standing, 30 to 40 feet from the corner next to a fire hydrant, in a zone where no parking is permitted between 7:00 A.M. and 9:00 A.M. From the sidewalk, the bus blocked the boys' view to their left of northbound traffic on Francis Lewis Boulevard. The two boys therefore walked out nine to 10 feet into the roadway's parking lane and stopped. Vincent Corrado, on Patrick Sullivan's left, peered around the bus in the direction of northbound traffic. At that moment, the defendant Ronald Marino, driving a 1977 Cadillac owned by his cousin Joseph Locastro, switched from the left into the right moving lane of traffic, and swerved into the area where the two boys were standing. Vincent Corrado jumped backward, out of the way, but Patrick Sullivan was struck by the car and propelled 71 feet.

As a result of the collision, Patrick Sullivan sustained serious brain damage and was left a spastic quadriplegic, suffering from aphasia and seizures. The evidence established that the boy was in constant extreme pain because of the permanent contraction of his muscles. After three years and nine months of hospitalizations and therapy, on July 27, 1986, he died following a grand mal seizure.

The jury found the defendant Marino 36% at fault in the happening of the accident and the defendant New York City Transit Authority 64% at fault in the happening of the accident. It also awarded the following damages: $8,000 for wrongful death, $2,500,000 for conscious pain and suffering, $550,000 for loss of earnings, $20,000 for medical expenses, $174,000 for hospital expenses, $200,000 for nursing expenses and $240,000 for therapy expenses.

On appeal, the New York City Transit Authority and the Metropolitan Transportation Authority contend that the plaintiffs failed to make out a prima facie case against them, because none of the traffic rules and regulations violated by the illegally parked bus were enacted to protect the class of persons to which the plaintiffs' decedent belonged. This contention is without merit. We note that the bus was parked next to a fire hydrant, in an area where there was no parking between 7:00 A.M. and 9:00 A.M., and that it was not at a designated bus stop, but rather was positioned near an intersection. It was error for the court to charge that the jury could consider the bus's parking near the fire hydrant as evidence of negligence--because that regulation does not contemplate traffic and/or pedestrian safety. However, the other regulations did to some degree contemplate traffic and/or pedestrian safety. Owners of illegally parked vehicles who create an unreasonable risk of harm to others must respond in damages to a party whose injury is proximately caused by the illegal conduct. Where "but for" a defendant's improper parking of his vehicle, an accident involving a moving vehicle would not have happened, the question of whether the defendant's breach of the parking violation was a proximate cause of a reasonably...