COURT UPHOLDS JURY VERDICT OF "NO CONTACT" DISMISSING CLAIM OF PEDESTRIAN ALLEGEDLY STRUCK BY GARBAGE TRUCK WHILE CROSSING STREET

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

Case: Jose Galarza v. Crown Container Co., Inc.

Date: Dec. 13, 2011

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens accident attorney)

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In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Queens County (Weiss, J.), entered January 7, 2011, which, upon a jury verdict on the issue of liability, is in favor of the defendants and against him dismissing the complaint.

ORDERED that the judgment is affirmed, with costs.

The plaintiff allegedly was injured when he was struck by a garbage truck while crossing Cypress Avenue, at its intersection with Putnam Avenue, in Ridgewood. The truck was owned by the defendant Crown Container Co., Inc., and operated by its employee, the defendant Daniel Moore. The plaintiff commenced this action against the defendants and, in his bill of particulars, alleged, inter alia, that his right foot suffered a crush injury.

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At the beginning of the trial of this action, the Supreme Court denied the plaintiff's motion for a unified trial. Following the liability phase of the trial, the jury found that there was no contact between the defendants' truck and the plaintiff's right foot. Judgment was entered in favor of the defendants and against the plaintiff dismissing the complaint. The plaintiff appeals from the judgment, and we affirm.

The Supreme Court properly conducted a bifurcated trial (see Winderman v. Brooklyn/McDonald Ave. Shoprite Assoc., Inc., 85 A.D.3d 1018, 1019, 925 N.Y.S.2d 637). Courts are encouraged to bifurcate issues of liability and damages in personal injury trials (see 22 NYCRR 202.42). A unified trial should only be conducted where the nature of the plaintiff's injuries has an "important bearing" on the issue of liability (D'Amato v. Yap, 53 A.D.3d 523, 524, 861 N.Y.S.2d 403; see Totaro v. Scarlatos, 63 A.D.3d 1144, 1145, 882 N.Y.S.2d 258; Pechersky v. Queens Surface Corp., 18 A.D.3d 842, 843, 795 N.Y.S.2d 465).

"The party opposing bifurcation has the burden of showing that the nature of the injuries necessarily assists the factfinder in making a determination with respect to the issue of liability" (Carbocci v. Lake Grove Entertainment, LLC, 64 A.D.3d 531, 532, 883 N.Y.S.2d 113). Here, the plaintiff's bald assertion that the nature of his injury was inextricably intertwined with the happening of the accident was insufficient to meet this burden. He failed to establish that the nature of his injuries was probative in determining how the incident occurred (see Wahid v. Long Is. R.R. Co., 59 A.D.3d 712, 713, 873 N.Y.S.2d 738; Upton v. Redmond Prods., Inc., 23 A.D.3d 551, 552, 806 N.Y.S.2d 653; Martinez v. Town of Babylon, 191 A.D.2d 483, 484, 594 N.Y.S.2d 357; compare Carbocci v. Lake Grove Entertainment, LLC, 64 A.D.3d at 532, 883 N.Y.S.2d 113; Pechersky v. Queens Surface Corp., 18 A.D.3d 842, 795 N.Y.S.2d 465). Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiff's motion for a unified trial, since the plaintiff's injuries did not have a bearing on the issue of liability (see Winderman v. Brooklyn/McDonald Ave. Shoprite Assoc., Inc., 85 A.D.3d at 1019, 925 N.Y.S.2d 637; Wahid v. Long Is. R.R. Co., 59 A.D.3d at 712, 873 N.Y.S.2d 738; Berman v. County of Suffolk, 26 A.D.3d 307, 308, 812 N.Y.S.2d 559; Vigmostad v. County of Suffolk, 293 A.D.2d 671, 671, 740 N.Y.S.2d 643).

Further, "[j]ury interrogatories must be based on claims supported by the evidence" (Spagnole v. Staten Is. Univ. Hosp., 77 A.D.3d 816, 816, 908 N.Y.S.2d 883; see Restagno v. Horwitz, 46 A.D.3d 533, 535, 846 N.Y.S.2d 615; Marzuillo v. Isom, 277 A.D.2d 362, 363, 716 N.Y.S.2d 98). Here, the plaintiff testified at trial that the garbage truck hit his left side and then went over his right foot with its right wheel. Contrary to the plaintiff's contention, given this testimony, the first interrogatory submitted to the jury by the Supreme Court which asked whether an accident occurred in which the plaintiff's right foot came into contact with the defendants' truck was proper (see Siegel v. Champion Parts, 297 A.D.2d 796, 797, 747 N.Y.S.2d 593; Fallon v. Damianos, 192 A.D.2d 576, 577, 596 N.Y.S.2d 134).

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