JURY'S LIABILITY TRIAL VERDICT IN FAVOR OF PEDESTRIAN STRUCK STANDING NEAR FRONT OF CAR UPHELD AS NOT "AGAINST THE WEIGHT OF THE EVIDENCE"

Court: Supreme Court, Kings County, New York

Case: Russell Pinto and Susan Pinto v. Moshe Tenenbaum, Horizon Care Center and Ocean Garden Nursing Facility, Inc.

Date: March 23, 2012

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

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JACK M. BATTAGLIA, J.

Recitation in accordance with CPLR 2219(a) of the papers considered on Defendant's motions for an order, pursuant to CPLR 4401 and 4404, setting aside a jury verdict:

‑Defendant Moshe Tenenbaum's Motions Pursuant to CPLR 4401 and 4404

Affirmation in Support of Defendant Moshe Tenenbaum's Motion [sic ] to Set Aside the Verdict

Exhibits A-D

‑Affirmation in Opposition

Exhibits A-B

‑Reply Affirmation in Support of Defendant Moshe Tenenbaum's Motion [sic ] to Set Aside the Verdict

As determined by the jury on the liability phase of a bifurcated trial, on October 10, 2005, plaintiff Russell Pinto was standing at the driver's door of his parked vehicle on 20th Street, west of its intersection with Third Avenue in Brooklyn, when he was struck by a vehicle owned and operated by defendant Moshe Tenenbaum. The jury, in effect, found that Defendant's negligence was the sole proximate cause of the occurrence.

At trial, Defendant moved, pursuant to CPLR 4401, for judgment as a matter of law, and following the "better practice" (see Jacino v. Sugerman, 10 AD3d 593, 594 [2d Dept 2004]; Austin v. Consilvio, 295 A.D.2d 244, 246 [1st Dept 2002]), the Court reserved decision. Defendant now renews that motion, and moves, pursuant to CPLR 4404, for "judgment as a matter of law," or, alternatively, for a new trial on the ground that the verdict is "contrary to the weight of the evidence" (see CPLR 4404[a].) Defendant also seeks a new trial on the ground that "the jury was improperly charged", which the Court understands as invoking the "interest of justice" authority found in CPLR 4404(a) (see Allen v. Uh, 82 AD3d 1025, 1025 [2d Dept 2011]; see also Loftus v. White, 85 N.Y.2d 874, 876 [1995].)

Substantially similar standards govern the court on a motion pursuant to CPLR 4401 for a directed verdict and on a motion pursuant to CPLR 4404(a) for judgment notwithstanding the verdict. (See Soto v. New York City Tr. Auth., 6 NY3d 487, 492 [2006].) "A trial court's grant of a CPLR 4401 motion for judgement as a matter of law is appropriate where the trial court finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party." (Szczerbiak v. Pilat, 90 N.Y.2d 553, 556 [1997].) "For a court to conclude as a matter of law [pursuant to CPLR 4404(a)] that a jury verdict is not supported by sufficient evidence, ... [i]t is necessary first to conclude that there is simply no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented at trial." (Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499 [1978].)

"In considering the motion for judgment as a matter of law, the trial court must afford the party opposing the motion every favorable inference which may properly be drawn from the facts presented, and the facts must be considered in the light most favorable to the nonmovant." (Szczerbiak v. Pilat, 90 N.Y.2d at 556.) "If there is a question of fact and it would not be utterly irrational for a jury to reach the result it has determined upon ... the court may not conclude that the verdict is a matter of law not supported by the evidence'." (Soto v. New York City Tr. Auth., 6 NY3d at 492 [quoting Cohen v. Hallmark Cards, 45 N.Y.2d at 499].)

"A jury verdict should not be set aside as contrary to the weight of the evidence unless the evidence so preponderates in favor of the moving party that the jury could not have reached the verdict by any fair interpretation of the evidence." (Seong Yim Kim v. New York City Tr. Auth., 87 AD3d 531, 532 [2d Dept 2011] [internal quotation marks, brackets, and citation omitted].) "It is within the province of the jury to determine issues of credibility, and great deference is accorded to the jury given its opportunity to see and hear the witnesses." (Id. [internal quotation marks, brackets, and citation omitted].)

"A motion pursuant to CPLR 4404(a) to set aside a verdict and for a new trial in the interest of justice encompasses errors in the trial court's rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence and surprise." (Allen v. Uh, 82 AD3d at 1025.) "The trial court must decide whether substantial justice has been done, and must look to common sense, experience, and sense of fairness in arriving at a decision." (Id.)

In addition to plaintiff Russell Pinto and defendant Moshe Tenenbaum, the jury heard from the police officer who investigated and took statements at the scene, and from two non‑party eyewitnesses, Synado Ebanks and Thaddeus Jones. Plaintiff testified that he had no memory of the accident itself, but presented no medical evidence to support amnesia or its connection to the accident. There was no basis, therefore, for an instruction that Plaintiff should be held to a lesser degree of proof. (See Pattern Jury Instruction 1:62; Sawyer v. Dreis & Krump Mfg. Co., 67 N.Y.2d 328, 333-35 [1986]; McGuire v. Laier, 281 A.D.2d 401, 402 [2d Dept 2001].) It is of significance to Defendant, however, that Plaintiff testified that he was injured on the left side of his body.

Twentieth Street west of Third Avenue appears, from photographs admitted into evidence, to be abutted entirely by properties used for commercial or industrial purposes, and terminates at the entrance to Sunset Industrial Park. The eastbound and westbound sections of the roadway are divided by a double yellow line, with a zebra‑striped zone on the south side of the yellow line in the area where the accident occurred. The north side of the yellow line, which is where the accident occurred, appears to be wide enough to accommodate three lanes, if not four, if they were so divided by markings, which they are not. Parking at the curb was nose‑in, not parallel. Plaintiff's vehicle could fairly be characterized as "double parked," if not "triple parked," depending on the testimony accepted.

According to the non‑party eyewitnesses, Mr. Pinto was standing at the driver's door of his vehicle when Mr. Tenenbaum's vehicle, moving at a high speed, struck Mr. Pinto. According to Mr. Jones, as Mr. Tenenbaum's vehicle passed him, he saw Mr. Tenenbaum through the passenger door window, and Mr. Tenenbaum was holding a cell phone to the ear facing Mr. Jones. There was some inconsistent evidence as to whether Mr. Pinto had opened the driver's door before he was struck by the Tenenbaum vehicle.

In his testimony, Mr. Tenenbaum denied both excessive speed and cell phone use, although he acknowledged a cell phone in the vehicle. Mr. Tenenbaum maintained that he saw Mr. Pinto walk around the front of his parked vehicle, and stand at the driver's door; after determining that there was sufficient space to allow for safe passage between Mr. Pinto and his parked vehicle on the right, and a large vehicle parked in the zebra‑striped zone to the left, Mr. Tenenbaum proceeded. He testified further that he heard a noise at the passenger side of his vehicle as he passed Mr. Pinto, and stopped a few feet ahead to investigate.

The Court instructed the jury generally as to negligence and proximate cause in accordance with Pattern Jury Instructions 2:10 (Common Law Standard of Care - Negligence Defined - Generally); 2:12 (Common Law Standard of Care – Foreseeability - Generally); and 2:70 (Proximate Cause - In General); and charged as to the general duties of a motorist and a pedestrian in accordance with a modified version of Pattern Jury Instruction 2:75 (Motor Vehicle Accidents - Pedestrian Crossing Highway). The jury was also instructed that Plaintiffs bore the burden of proof on negligence and causation as to Defendant, but that Defendant bore the burden of proof on negligence and causation as to Plaintiff. (See Pattern Jury Instruction 1:60 [Burden of Proof - When Burden Differs on Different Issues].)

Specifically as to Defendant's negligence, the jury was instructed as to Vehicle and Traffic Law Sec. 1225-c, which provides, as pertinent here, that "no person shall operate a motor vehicle upon a public highway while using a mobile telephone to engage a call while such vehicle is in motion"; that "[a]n operator of a motor vehicle who holds a mobile telephone to, or in the immediate proximity of his or her ear while such vehicle is in motion is presumed to be engaging in a call within the meaning of this section"; and that "[t]he presumption ... is rebuttable by evidence tending to show that the operator was not engaged in a call ." (See VTL Sec. 1225_c [2][a], [2][b].) The jury was also told that a violation of the statute, if found, "constitutes negligence" (see Pattern Jury Instruction 2:26 [Statutory Standard of Care - Vehicle and Traffic Law Violation].)

Considering first the jury's determinations with respect to Defendant, the evidence supported a jury finding that Mr. Tenenbaum violated Vehicle and Traffic Law Sec. 1225-c, establishing his negligence, and, since the obvious purpose of the statute is to protect motorists and pedestrians from the danger of driving while distracted, establishing proximate cause as well. Since the only contrary evidence as to violation of the statute came from Mr. Tenenbaum, which the jury was free to reject, the jury's determinations cannot be said to be "against the weight of the evidence" (see CPLR 4404[a].)

As to Plaintiff's alleged negligence, as will appear, the Court refused Defendant's requests to charge the jury as to certain alleged violations of the Vehicle and Traffic Law. Defendant argued to the jury that Mr. Pinto was negligent in "double parking" his vehicle and, thereby, limiting passage in the adjacent roadway, notwithstanding that Mr. Tenenbaum had testified that, with awareness of Mr. Pinto and his parked vehicle, there was sufficient space for passage; that Mr. Pinto was negligent in opening or proceeding to open the driver's door on his vehicle, with inconsistent evidence on the issue; and that Mr. Pinto was negligent in not looking carefully while in the roadway, or while proceeding to open the driver's door.

Particularly considering Defendant's burden of proof on the issue, and the jury's consideration of the conditions as to parking and traffic at the rather unique location at the time of the occurrence, the jury's determination that plaintiff Russell Pinto was not negligent is neither irrational nor against the weight of the evidence. Defendant offered no direct evidence that Plaintiff failed to look, or failed to look carefully, and, given the non‑party testimony as to the speed of Defendant's vehicle, the jury could have fairly concluded that Defendant's vehicle was not "there to be seen" when Plaintiff would have, or should have, looked (see Pattern Jury Instruction 2:75.)

Defendant contends that "the impossibility of reconciling the purported eye‑witness accounts of defendant's vehicle's impact to the right side of plaintiff's body with the undisputed fact that plaintiff sustained injury to the left side of his body ... renders the jury's decision fundamentally irrational." (Reply Affirmation in Support of Defendant Moshe Tenenbaum's Motion [sic ] to Set Aside the Verdict - 2.) The short answer to Defendant's contention is that, on the liability phase of a bifurcated trial, the plaintiff is required to show only that the defendant was negligent and that the defendant's negligence was a substantial factor in bringing about the accident. Although the purported inconsistency was fairly argued to the jury, and might be considered on the reliability of the eyewitness testimony, Plaintiff was not required, or even permitted, to connect Defendant's negligence to any particular injury.

Indeed, Defendant did not offer the jury on closing argument, and does not offer the Court on these motions, any reason for considering that an impact to the left side of Plaintiff's body would be evidence of Defendant's lack of negligence, or of negligence on the part of Plaintiff. In any event, it is consistent with human experience that an impact to the right side of a person's body could cause the person to fall to the ground on the left side. Moreover, one of the eyewitnesses, Synado Ebanks testified that, upon impact between Defendant's vehicle and Plaintiff's right side, Plaintiff's body turned with his left leg still on the ground.

Finally, and perhaps most significantly, Defendant contends that the jury's verdict must be set aside because the Court erred in not charging the jury with respect to three sections of the Vehicle and Traffic Law as establishing Plaintiff's negligence in bringing about the accident, i.e., Vehicle and Traffic Law Secs. 1152, 1202, and 1214. "As a rule, violation of a State statute that imposes a specific duty may constitute negligence per se, or may even create absolute liability." (Elliot v. City of New York, 95 N.Y.2d 730, 734 [2001].) Where appropriate, the jury would be charged that, if a party is found to have violated one or more provisions of the Vehicle and Traffic Law, "such a violation constitutes negligence," and the jury "cannot disregard a violation of the statute and substitute some standard of care other than that set forth in the statute." (See Pattern Jury Instruction 2:26; see also Collazo v. Metro. Suburban Bus Auth., 68 AD3d 803, 804 [2d Dept 2009]; Tepoz v. Sosa, 241 A.D.2d 449 [2d Dept 1997] ["prima facie evidence of negligence"]; but see Gross v. New York City Tr. Auth., 256 A.D.2d 128, 130 [1st Dept 1998]; Ferguson v. Gassman, 229 A.D.2d 464, 465 [2d Dept 1996].)

"By contrast, violation of a municipal ordinance constitutes only evidence of negligence." ( Elliot v. City of New York, 95 N.Y.2d at 734.) Where appropriate, the jury would be charged that, if a party violated one or more provisions of the New York City Traffic Rules and Regulations, the jury "may consider the violation as some evidence of negligence, along with the other evidence in the case, provided that such violation was a substantial factor in bringing about the occurrence." (See Pattern Jury Instruction 2:29; see also Ferrer v. Harris, 55 N.Y.2d 285, 293 [1982]; Schneider v. Diallo, 14 AD3d 445, 446 [1st Dept 2005]; Murray-Davis v. Rapid Armored Corp., 300 A.D.2d 96 [1st Dept 2002]; Calafura-Erlick v. Spiros Sys. 40, 259 A.D.2d 580, 580-81 [2d Dept 1999]; Giordano v. Sheridan Maintenance Corp., 38 A.D.2d 552, 553 [2d Dept 1971].)

"Section 1642 of the Vehicle and Traffic Law authorizes the City of New York by local law, ordinance, rule or regulation to supersede the provisions of the Vehicle and Traffic Law with respect, among other things, to parking, and the city has done just that." (Somersall v. New York Tel. Co., 52 N.Y.2d 157, 165_66 [1981]; see also Giordano v. Sheridan Maintenance Corp., 38 A.D.2d at 553.) Pursuant to this authority, the City of New York has superseded Vehicle and Traffic Law Secs. 1152 and 1202, but not Vehicle and Traffic Law Sec. 1214. (See New York City Traffic Rules and Regulations Sec. 4-02 [e]; 34 RCNY 4-02[e].)

Whether a provision of the Vehicle and Traffic Law or a provision of the New York City Traffic Rules and Regulations is at issue, the jury should not be charged as to an alleged violation "if the statute [or local rule] is intended to protect against a particular hazard, and a hazard of a different kind is the occasion of the injury." (See Narducci v. Manhasset Bay Assocs., 96 N.Y.2d 259, 267 [2001] [internal quotation marks and citations omitted]; see also Di Ponzio v. Reardon, 89 N.Y.2d 578, 584-85 [1997]; DeHaen v. Rockwood Sprinkler Co., 258 N.Y. 350, 353-54 [1932]; Boronkay v. Robinson & Carpenter, 247 N.Y. 365, 368 [1928]; Martin v. Herzog, 228 N.Y. 164, 170-71 [1920].)

And a failure to charge the jury with respect to a violation of the Vehicle and Traffic Law, or a violation of a provision of the New York City Traffic Rules and Regulations, is not fatal to the jury's verdict, if the charge that was given fairly instructed the jury as to the statutory or regulatory standard of care, as the case may be. (See Stalikas v. United Materials, 100 N.Y.2d 626, 627 [2003]; Schneider v. Diallo, 14 AD3d at 446; Markel v. Broadway Garage, 111 A.D.2d 151 [2d Dept 1985]; see also Wild v. Catholic Health Sys., 85 AD3d 1715, 1717 [4th Dept 2011].)

Defendant's request for a charge as to Vehicle and Traffic Law Sec. 1152 would have been properly refused even if the statute was not "superseded" in New York City. As contended for by Defendant, the pertinent provision states, "Every pedestrian crossing a roadway at any point other than within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway" (see VTL Sec. 1152[a].) The charge is properly refused where, as here, "plaintiff was indisputably not crossing the road." (See Papa v. Kilroy, 24 AD3d 1088, 1089 [3d Dept 2005] [plaintiff sweeping debris from roadway]; see also Markel v. Broadway Garage, 111 A.D.2d 151.) Although not requested, the Court notes that a charge based upon Sec. 4-04(b)(2) or (c)(3) of the New York City Traffic Rules and Regulations would have been properly refused for the same reason, and because there was no evidence to support a violation of the provision that "no pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the operator to yield" (see 34 RCNY Sec. 4-04 [b][2]; see also 34 RCNY Sec. 4-40[c][3].)

Although Vehicle and Traffic Law Sec. 1202, including subsection (a)(1)(a) prohibiting

"double parking," has been superceded by Sec. 4-08(f)(1) of the New York City Traffic Rules and Regulations, for purposes of this case the provisions are the same. A violation would be "some evidence of negligence," and could constitute a "contributing cause" to an accident. (Borbon v. Pescoran, 73 AD3d 502, 502 [1st Dept 2010].) Here, however, a Second Department decision on similar facts requires the conclusion that "[t]he presence of the plaintiff's vehicle at its location, albeit double‑parked, merely furnished the condition or occasion for the occurrence rather than one of its causes." (See O'Malley v. USA Waste of NY, 283 A.D.2d 409, 409 [2d Dept 2001].) Here, moreover, Defendant testified that he saw plaintiff Russell Pinto standing at the driver's door of his vehicle, and determined that he could pass Mr. Pinto and his vehicle safely. There is no evidence that Defendant's vehicle struck Mr. Pinto because Mr. Pinto's vehicle somehow obstructed Defendant's passage.

Vehicle and Traffic Law Sec. 1214, which is not superceded in New York City, provides in pertinent part, "No person shall open the door of a motor vehicle on the side available to moving traffic unless and until it is reasonably safe to do so, and can be done without interfering with the movement of other traffic." The primary purpose of the statute appears clearly to be the unobstructed "movement of other traffic," including bicyclists, and the danger presented to passing traffic by a door opened from within a parked vehicle by a person not visible to the passing motorist or bicyclist. The statute has also been applied, however, to a plaintiff injured while exiting a parked vehicle where the vehicle's door makes contact with a passing vehicle. (See Sayed v. Aviles, 72 AD3d 1061 [2d Dept 2010]; Montesinos v. Cote, 46 AD3d 774 [2d Dept 2007]; Williams v. Persaud, 19 AD3d 686 [2d Dept 2005]; Ferguson v. Gassman, 229 A.D.2d 464 [2d Dept 1996].) The statute was also applied, moreover, where "[t]he plaintiff allegedly sustained injuries when, as he attempted to enter his parked vehicle, the driver's side door of his car made contact with the trailer portion of a moving tractor‑trailer owned by the defendant." (See Abbas v. Salavel, 73 AD3d 1100, 1101 [2d Dept 2010].)

The Court will assume, notwithstanding Plaintiffs' contentions to the contrary, that there is evidence that would support a jury determination that plaintiff Russell Pinto had opened the driver's door on his vehicle, and that there was contact between the driver's door and some part of Defendant's vehicle. What is absent is any evidence that any contact between the driver's door and Defendant's vehicle, or even the open door itself, contributed in any way to any contact between Defendant's vehicle and Mr. Pinto, or contributed to any injury to Mr. Pinto in any manner.

Nothing like that was argued to the jury by Defendant's counsel. Rather, as understood by the Court, the argument was that, in order to open the driver's door, Mr. Pinto stepped back, and into the path of Defendant's vehicle. That was the negligent conduct of Mr. Pinto according to the Defendant, in addition to his not having made proper observation of approaching traffic. There was no direct evidence of any such conduct on Mr. Pinto's part, but any evidence of the open door was argued to support an inference that such conduct occurred, and any evidence of damage to the door was argued to support an inference that the door was opened.

Since the harm that occurred is not related to the harm the statute was designed to prevent, Vehicle and Traffic Law Sec. 1214 could not be the basis of a finding that plaintiff Russell Pinto was negligent. Moreover, the jury was fully instructed as to the reasonableness standard that the statute articulates, and Defendant's counsel argued to the jury that Mr. Pinto's double‑parking of his vehicle, his presence in the roadway, and his opening of the driver's door was conduct that should lead the jury to conclude that he was negligent under that standard. The jury obviously disagreed.

Although the Court's own determinations of law are subject to reconsideration "in the interest of justice" (see CPLR 4404[a]), and entitled to no particular deference, the jury's factual determinations, including credibility assessments, stand on different footing. The jury heard the comprehensive arguments of counsel, and reached its conclusions. The Court is convinced that those conclusions would not have differed had the Court instructed on any one or more of the requested statutory or regulatory provisions, and, therefore, cannot conclude that "substantial justice has [not] been done" (see Allen v. Uh, 82 AD3d at 1025.)

Defendant's motions pursuant to CPLR 4401 and 4404 are denied. In accordance with the Court's Interim Order dated February 27, 2012, the parties shall appear for the damages phase of the trial in the Jury Coordinating Part at 9:30 a.m. on April 23, 2012.

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