Jacino v. SugermanJacino v. Sugerman
In an action to recover damages for personal injuries, etc., the defendants Wendy S. Sugerman and Barry Price appeal, as limited by their brief, from so much of an interlocutory judgment of the Supreme Court, Queens County (Hart, J.), dated September 4, 2003, as, after a jury trial on the issue of liability, and upon the granting of the motion of the defendant third-party plaintiff pursuant to CPLR 4401 to dismiss the complaint and all cross claims insofar as asserted against her for failure to establish a prima facie case, directed the Clerk of the Supreme Court, Queens County, to enter a verdict on the issue of liability in favor of the plaintiffs and against them, and the defendant third-party defendant appeals, as limited by its brief, from so much of the same judgment as added it as a defendant in the main action for the purpose of the liability phase of the trial and as is in favor of the plaintiffs and against it on the issue of liability.
Ordered that the interlocutory judgment is affirmed, with one bill of costs payable by the appellants to the respondents appearing separately and filing separate briefs.
The subject accident occurred at approximately 2:00 em. on January 8, 1995, a bright and sunny day. A vehicle driven by the defendant third-party plaintiff, Donna R. Colasurdo, collided with a vehicle driven by the defendant Wendy S. Sugerman, leased by the defendant Barry Price, and owned by the defendant third-party defendant Mitsubishi Motors Credit of America, Inc. (hereinafter Mitsubishi). The plaintiff Margaret Jacino was a passenger in the Sugerman vehicle. At the trial on the issue of liability, Sugerman testified that she was parked in
Sugerman testified that she drove at a speed of seven to eight miles per hour out of the parking space into the lane adjacent to the parked cars. Her intention was to cross over into the left-hand turning lane. As she was clearing the front of the van she saw the vehicle driven by Colasurdo, which collided with the driver’s side of her vehicle. The impact was a broadside on the driver’s door since Sugerman was proceeding at an angle.
At the trial, Colasurdo testified that she was traveling straight on Braddock Avenue, westbound in the left lane. She claimed that her speed was between 15 and 20 miles per hour in light traffic. Colasurdo did not see any double-parked vehicles. From one-half block away, she saw a woman entering a parked vehicle located in a parking space which was later identified as the vehicle driven by Sugerman. According to Colasurdo, in a “split-second” Sugerman drove across the road in an apparent attempt to make a U-turn into the eastbound lanes. Colasurdo braked hard and “must have” sounded her horn but did not swerve to avoid colliding with Sugerman’s vehicle. Colasurdo was not sure whether Sugerman’s vehicle was entirely in the left westbound lane at the time of impact.
Jacino’s deposition testimony, which was introduced in evidence at the trial, indicated that there was a double-parked car behind them. According to Jacino the vehicle driven by Sugerman was moving at a 45-degree angle when the accident occurred.
At the trial, after Sugerman rested but before Colasurdo rested, Colasurdo moved pursuant to CPLR 4401 to dismiss the complaint and cross claims. The Supreme Court granted the motion on the ground that Colasurdo had the right-of-way. We note that a better practice would have been to allow the case to go to the jury and entertain motions for judgment as a matter of law after the jury rendered a verdict (see CPLR 4404). There is little to gain and much to lose by granting the motion for judgment as a matter of law after much of the evidence has been submitted to the jury and before the jury has rendered a verdict (see Siegel, NY Prac § 405 [3d ed]; Rosario v City of New York,
Nevertheless, Colasurdo was entitled to judgment as a matter of law. If one accepts Sugerman’s version of the events as true, she proceeded into the moving lanes of traffic at an angle without ascertaining what traffic was behind her, in violation of Vehicle and Traffic Law § 1128 (a) (see Calandra v Dishotsky,
Under either version of the facts presented at the trial, Colasurdo had the right-of-way and was entitled to anticipate that Sugerman would obey traffic laws which required her to yield (see Russo v Scibetti,
Sugerman’s allegation that Colasurdo contributed to the emergency situation by traveling at an excessive rate of speed is speculation (see Michel v Gressier,
At the trial, Sugerman characterized Colasurdo’s speed as “fast.” However, her characterization could not have been based upon personal knowledge or observations since she acknowledged that she did not see Colasurdo’s vehicle before impact. Accordingly, her opinion constituted speculation (see Soto v New York City Tr. Auth.,
Since Colasurdo was confronted with an emergency not of her making, an error in judgment in responding to the emergency would be insufficient to defeat Colasurdo’s motion for judgment as a matter of law (see e.g. Burnell v Huneau,
There is no competent evidence of negligence on the part of Colasurdo or Jacino (see Mora v Garcia,
Mitsubishi’s contention that the Supreme Court improperly added it as a defendant in the main action for the purpose of the liability phase of the trial is unpreserved for appellate review (see Cullen v Naples,
The parties’ remaining contentions are without merit. H. Miller, J.P., Goldstein, Luciano and Spolzino, JJ., concur.