Vasquez v. Cnty. of Nassau

• Decision Date: 24 January 2012
• Citation: 2012 N.Y. Slip Op. 00508,938 N.Y.S.2d 109,91 A.D.3d 855
• Parties: Felix VASQUEZ, etc., et al., respondents, v. COUNTY OF NASSAU, et al., appellants-respondents,Glory E. Upke, respondent-appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 00508

91 A.D.3d 855

938 N.Y.S.2d 109

Felix VASQUEZ, etc., et al., respondents,

v.COUNTY OF NASSAU, et al., appellants-respondents,Glory E. Upke, respondent-appellant.

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

Jan. 24, 2012.

Sciretta & Venterina, LLP, Staten Island, N.Y. (Marilyn Venterina of counsel), for appellants-respondents.

O'Connor, O'Connor, Hintz & Deveney, LLP, Melville, N.Y. (Robert E. O'Connor of counsel), for respondent-appellant.

Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz, New York, N.Y. (Rhonda E. Kay, Richard M. Steigman, and Howard S. Hershenhorn of counsel), for respondents.DANIEL D. ANGIOLILLO, J.P., ANITA R. FLORIO, CHERYL E. CHAMBERS, and L. PRISCILLA HALL, JJ.

In an action to recover damages for personal injuries, the defendants County of Nassau, Metropolitan Suburban Bus Authority, and William Malloy appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Nassau County (McCarty III, J.), entered August 4, 2010, as, upon a jury verdict on the issues of liability and damages finding that they were 35% at fault in the happening of the accident and that the defendant Glory E. Upke was 65% at fault, and that the plaintiffs sustained damages, inter alia, in the principal sums of $100,000 for the decedent's conscious past pain and suffering, $40,000 for past loss of financial support, $200,000 for future loss of financial support, $140,000 for past loss of household services, $1,800,000 for future loss of household services, $100,000 for past loss of parental care and guidance, and $600,000 for future loss of parental care and guidance, and upon the denial of those branches of their motion which were pursuant to CPLR 4404(a) to set aside the verdict and for judgment as a matter of law or, in the alternative, to set aside the verdict as contrary to the weight of the evidence and for a new trial or, in the alternative, to set aside the award of certain items of damages as excessive, and upon the reduction of the awards for past and future loss of financial support pursuant to CPLR 4545, is in favor of the plaintiffs and against them in the principal sums of $100,000, for the decedent's conscious past pain and suffering, $31,810 for past loss of financial support, $189,290 for future loss of financial support, $140,000 for past loss of household services, $1,800,000 for future loss of household services, $100,000 for past loss of parental care and guidance, and $600,000 for future loss of parental care and guidance, and the defendant Glory E. Upke cross-appeals, as limited by her brief, from so much of the same judgment as is in favor of the plaintiffs and against her in those principal sums.

ORDERED that the judgment is affirmed insofar as appealed and cross-appealed from, with one bill of costs payable by the defendants appearing separately and filing separate briefs.

This case stems from an accident involving multiple vehicles and two pedestrians at the intersection of Jackson Street and Washington Street in Hempstead, which was governed by traffic light signals. The decedent was carrying the infant plaintiff, her three-year-old disabled son with Down Syndrome. As the decedent crossed Jackson Street on the north side of the intersection in the crosswalk, she was struck by a vehicle operated by the defendant Glory E. Upke, after that vehicle was struck by a bus operated by the defendant William Malloy and owned by the defendant Metropolitan Suburban Bus Authority. The force of the impact propelled the decedent into the air and caused her to let go of the infant plaintiff. Prior to the accident, the bus was traveling in a westerly direction on Jackson Street, and the Upke vehicle was traveling in a northerly direction on Washington Street.

There was conflicting evidence adduced at trial as to the speed at which the vehicles were moving as they approached the intersection and about which driver had the right of way. Upke testified that she had a yellow light as she traveled north through the intersection, but several witnesses testified that Malloy, the bus driver, had a green light as he traveled west through the intersection. In any event, Upke did not see the bus until it hit her vehicle in the intersection. Although there was conflicting evidence about whether Malloy looked for other vehicles or pedestrians before proceeding through the intersection, as he approached the intersection, he could see substantially more than 40 feet to his left, which was the direction from which Upke's vehicle was traveling. Nonetheless, he did not see her vehicle until a “split second” before the bus collided with Upke's vehicle. The jury found that the defendants County of Nassau, Metropolitan Suburban Bus Authority, and Malloy (hereinafter collectively the municipal defendants) were 35% at fault in the happening of the accident, and Upke was 65% at fault in the happening of the accident.

“In evaluating the legal sufficiency of the evidence, a court must determine whether there is any valid line of reasoning and permissible inferences which could possibly lead a rational [person] to the conclusion reached by the jury on the basis of the evidence presented at trial” ( Sydnor v. Home Depot U.S.A., Inc., 74 A.D.3d 1185, 1187, 906 N.Y.S.2d 279 [internal quotation marks omitted]; see Fekry v. New York City Tr. Auth., 75 A.D.3d 616, 617, 906 N.Y.S.2d 297). Here, a rational person could have concluded that both drivers failed to use reasonable care, and to “see that which [THEY] SHOULD HAVE SEEN” AS they approached and entered the intersection ( Barbieri v. Vokoun, 72 A.D.3d 853, 856, 900 N.Y.S.2d 315; see Shea v. Judson, 283 N.Y. 393, 398, 28 N.E.2d 885; Blasso v. Parente, 79 A.D.3d 923, 925, 913 N.Y.S.2d 306; Nuziale v. Paper Transp. of Green Bay Inc., 39 A.D.3d 833, 835, 835 N.Y.S.2d 316; Siegel v. Sweeney, 266 A.D.2d 200, 201–202, 697 N.Y.S.2d 317).

“[A] jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence. Whether a jury verdict should be set aside as contrary to the weight of the evidence does not involve a question of law, but rather requires a discretionary balancing of many factors” ( Fekry v. New York City Tr. Auth., 75 A.D.3d at 617, 906 N.Y.S.2d 297 [citations omitted]; see Cohen v. Hallmark Cards, 45 N.Y.2d 493, 498–499, 410 N.Y.S.2d 282, 382 N.E.2d 1145; Sydnor v. Home Depot U.S.A., Inc., 74 A.D.3d at 1187, 906 N.Y.S.2d 279). We accord deference to the credibility determinations of the factfinders, “who had the opportunity to see and hear the witnesses” ( Fekry v. New York City Tr. Auth., 75 A.D.3d at 617, 906 N.Y.S.2d 297; see Bertelle v. New York City Tr. Auth., 19 A.D.3d 343, 796 N.Y.S.2d 415). Moreover, the “jury's apportionment of fault should not be set aside unless it could not have been reached based upon a fair interpretation of the evidence” ( Sydnor v. Home Depot U.S.A., Inc., 74 A.D.3d at 1187, 906 N.Y.S.2d 279). Here, the jury's verdict was supported by a fair interpretation of the evidence.

Contrary to the contentions of the municipal defendants, they were not entitled to a jury instruction on the emergency doctrine merely based upon Malloy's testimony that he did not see Upke's vehicle in the intersection until a split second before the collision. Here, the plaintiffs were not seeking to hold any of the municipal defendants responsible for actions Malloy took after the alleged emergency situation arose ( see Jablonski v. Jakaitis, 85 A.D.3d 969, 970, 926 N.Y.S.2d 137). Rather, they claimed that Malloy failed to use reasonable care as he approached the intersection. In other words, he failed to “see that which he should have seen” ( Barbieri v. Vokoun, 72 A.D.3d at 856, 900 N.Y.S.2d 315; see Blasso v. Parente, 79 A.D.3d at 925, 913 N.Y.S.2d 306; Nuziale v. Paper Transp. of Green Bay Inc., 39 A.D.3d at 835, 835 N.Y.S.2d 316), and he should have anticipated the alleged emergency situation by exercising reasonable care to look out for any other vehicles entering, or already in, the intersection ( see Hart v. Town of N. Castle, 305 A.D.2d 543, 544, 759 N.Y.S.2d 185; Mead v. Marino, 205 A.D.2d 669, 669–670, 613 N.Y.S.2d 650). Under these circumstances, the municipal defendants were not entitled to a jury charge on the emergency doctrine ( see Jablonski v. Jakaitis, 85 A.D.3d at 970, 926 N.Y.S.2d 137; Hart v. Town of N. Castle, 305 A.D.2d at 544, 759 N.Y.S.2d 185; Mead v. Marino, 205 A.D.2d at 669–670, 613 N.Y.S.2d 650; cf. Kuci v. Manhattan & Bronx Surface Tr. Operating Auth., 88 N.Y.2d 923,...