Tucker v. Elimelech

• Decision Date: 15 June 1992
• Parties: James TUCKER, et al., Respondents-Appellants, v. Salomon ELIMELECH, et al., Appellants-Respondents, City of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 895

584 N.Y.S.2d 895

184 A.D.2d 636

James TUCKER, et al., Respondents-Appellants, v. Salomon ELIMELECH, et al., Appellants-Respondents City of New York, Respondent.

Supreme Court, Appellate Division Second Department.

June 15, 1992.

Wilson, Bave, Conboy & Bave, P.C., White Plains (William H. Bave, Jr., of counsel), for appellants-respondents.

Eppinger, Reingold & Fremont, Larchmont (Mitchell L. Korder of counsel), for respondents-appellants.

O. Peter Sherwood, Corp. Counsel, New York City (Ellen B. Fishman and Linda H. Young, of counsel), for respondent.

Before THOMPSON, J.P., and LAWRENCE, COPERTINO and SANTUCCI, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., the defendants Salomon Elimelech and Nissim Nir Elimelch (a/k/a Nissim Nir Elimeleh) appeal from (1) a judgment of the Supreme Court, Kings County (Vinik, J.), entered December 18, 1989, which, upon a jury verdict, inter alia, is in favor of the plaintiff James Tucker in the principal sum of $1,500,000, and in favor of the plaintiff Sylvia Tucker in the principal sum of $300,000, and (2) an amended judgment of the same court, entered April 2, 1990, which, inter alia, corrected "a computation error in the computation of the interest" on the principal sums set forth in the judgment entered December 18, 1989, and the plaintiffs cross-appeal from so much of the same judgment and amended judgment as dismissed the complaint insofar as it is asserted against the defendant City of New York.

ORDERED that the appeal and cross appeal from the judgment entered December 18, 1989, are dismissed, as that judgment was superseded by the amended judgment entered April 2, 1990; and it is further,

ORDERED that the amended judgment is modified, on the facts and as an exercise of discretion, without costs or disbursements, by deleting the provision thereof awarding the plaintiff James Tucker the principal sum of $1,500,000, and awarding the plaintiff Sylvia Tucker the principal sum of $300,000, and substituting therefore a provision granting a new trial on the issue of damages only, unless within 20 days after service upon them of a copy of this decision and order, with notice of entry, the plaintiffs shall serve and file in the office of the Clerk of the Supreme Court, Kings County, a written stipulation consenting to reduce the verdict as to the plaintiff James Tucker's damages to the principal sum of $750,000 and as to the plaintiff Sylvia Tucker's damages to the principal sum of $85,000 and to the entry of an amended judgment accordingly; and it is further,

ORDERED that in the event the plaintiffs so stipulate, then the amended judgment, as so reduced and amended, is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

In the early morning hours of February 25, 1984, the plaintiff James Tucker was injured when the taxicab he was driving collided with a station wagon operated by the defendant Nissim Nir Elimelch (a/k/a Nissim Nir Elimeleh), and owned by his father, the defendant Salomon Elimelech (hereinafter the remaining defendants), which had crossed over the median guardrail on the Belt Parkway.

We find that the trial court correctly struck the testimony of the plaintiffs' expert and dismissed the action insofar as it was against the defendant City of New York. "It is settled and unquestioned law that opinion evidence must be based upon facts in the record or personally known to the witness" (Hambsch v. New York City Tr. Auth., 63 N.Y.2d 723, 725, 480 N.Y.S.2d 195, 469 N.E.2d 516, citing Cassano v. Hagstrom, 5 N.Y.2d 643, 646, 187 N.Y.S.2d 1, 159 N.E.2d 348; DeTommaso v. Fitzgerald Const. Corp., 138 A.D.2d 341, 342, 525 N.Y.S.2d 632). The expert witness testified that based upon his observations of 200 feet of the guardrail in the vicinity of 75th Street on the Belt Parkway in December 1987, which revealed that the guardrail measured 22 inches in height, the City of New York had failed to maintain the rail at a height of 27 inches, as required by the State of New York. He also testified that judging from the absence of new dirt at the base of the guardrail, the rail had been there for some time, and upon his review of the police accident report, he estimated that the offending station wagon had struck the guardrail at an angle of 25 degrees or less, causing it to cross over into the oncoming lanes of traffic. The record reveals, however, that no competent evidence established that the suspect guardrail had, in fact, been 22 inches in height as of the date of the accident, or that the guardrail at the accident site had not been replaced prior to his inspection. Moreover, no evidence whatsoever established that the station wagon had hit the rail at an angle of 25 degrees or less. "Speculation and surmise are not a substitute for proof and where [as here] evidence is capable of an interpretation equally consistent with the presence or absence of a wrongful act, that meaning must be ascribed which accords with its absence" (De Mayo v. Yates Realty Corp., 35 A.D.2d 700, 314 N.Y.S.2d 918, affd., 28 N.Y.2d 894, 322 N.Y.S.2d 727, 271...