Fourth Department Reaffirms the Role of a Jury in Negligence Actions Upholding the Verdict Dismissing a Plaintiff’s Complaint in a Rear End Collision

In Senycia v. Vosseler, et al. (CA 21-01596), the plaintiff, who was passenger in the defendant Nagy’s vehicle appealed the judgment of a jury who rendered a verdict in favor of the defendants, dismissing plaintiff’s complaint against both the Vosseler and Nagy defendants.

On appeal, the Fourth Department affirmed the jury’s verdict as there was a rational process by which the jury could have found Vosseler did not act negligently. Our office, representing the Vosseler defendant, argued the importance of the role of a jury in negligence actions, including on motions for a directed verdict and to set aside a verdict. We argued that the jury is in the best position to determine negligence as it has the ability to hear the live testimony and weigh credibility of evidence. Reaffirming the standard and long held law that there must be a rational process by which a jury could reach its verdict, the Appellate Division agreed that the defendant Vosseler proffered a nonnegligent explanation for the collision and a jury could rationally accept his testimony.

The plaintiff in this action was rear-ended on the northbound north Grand Island Bridge just after the crest. The defendant Vosseler, driving with the flow of traffic, crested the bridge to find a series of stopped vehicles ahead including the stopped Nagy vehicle, in which plaintiff was passenger, which had collided with the center guardrail. As Vosseler braked for the unexpected pileup, his vehicle slid into several vehicles. The Fourth Department determined that the jury rationally accepted Vosseler’s nonnegligent explanation in refusing to overturn their verdict and in affirming the trial court’s denial of plaintiff’s motion for a directed verdict.

The Fourth Department also denied plaintiff’s appeal of the trial court’s refusal to instruct the jury on VTL §1180(e) which specifically refers to using reasonable speed when cresting a hill. The Fourth Department determined that the trial court’s charging of the standard negligence related charges and duties in the aggregate were sufficient to explain negligence principles. Therefore, a failure to charge VTL §1180(e) did not affect the jury’s verdict.

Please feel free to contact Richard J. Zielinski, Esq. regarding the issues litigated in this case.

Fourth Department Modifies Discovery Order Finding the Trial Court Abused its Discretion as the Terms of the Order Resulted in Prejudice to the Defendants

In Manner v. Yancey, et al. (CA 22-00823), our office representing the defendants appealed the trial court order that denied our motion for a protective order and directed the defendants to provide neuropsychological test materials and raw data directly to plaintiff’s counsel. The Fourth Department modified the order, granting our motion for a protective order.

At the trial court, we moved to compel the plaintiff to attend a neuropsychological examination and moved for a protective order as the plaintiff refused to attend such an examination unless the test materials and raw data generated during that examination would be provided directly to plaintiff’s counsel. The trial court denied the motion for a protective order, directing that the defendants’ neuro psychological examiner provide the yet to be generated material and data directly to plaintiff’s counsel in accordance with their request.

This directive substantially prejudiced the defendants because no examiner would conduct the exam under these constraints. Three neuropsychologists submitted affidavits in support of our motion, affirming that they would not provide the materials and data directly to plaintiff’s counsel, a layperson, pursuant to their ethical guidelines to maintain test material and raw data security. The doctors felt it would violate their ethical code by providing such materials to a non-licensed individual. Therefore, no doctor would conduct the examinations and the defendants would be prejudiced in not being able to prepare for trial.

The Fourth Department agreed that the trial court’s directive resulted in substantial prejudice to the defendants, affording the doctors’ affirmations significant weight. The Fourth Department specifically noted that, while the test materials and raw data may be discoverable, they did not yet exist and could not be compelled. To avoid the substantial prejudice of precluding the defense from conducting an independent medical examination, the Fourth Department modified the trial court’s order by granting a motion for protective order and vacating the directive that any test material and data generated be provided directly to plaintiff’s counsel.

Please feel free to contact Thomas P. Kawalec, Esq. or Richard J. Zielinski, Esq. regarding the issues litigated in this case.

Fourth Department Upholds Denial of Summary Judgement on Negligence and Serious Injury Threshold Relying on Inconsistent Range of Motion Testing

In Scime v. Hale Northeastern Inc. et al. (CA 22-01276), plaintiff moved for summary judgement on the issues of negligence and serious injury threshold where the plaintiff, a pedestrian, was struck by the defendant vehicle which was backing out of a loading dock at the time of the impact. The trial court denied the plaintiff’s motion with respect to both the defendant’s negligence and the plaintiff’s claimed serious injury.

The Fourth Department affirmed the trial court’s order, finding that the plaintiff’s own testimony, which generated uncertainties as to whether he was moving at the time of the collision or stationery, raised a question of fact as to whether the plaintiff walked into the defendant vehicle’s path unexpectedly. The defendant driver testified that he checked his mirrors prior to backing up and did not see the plaintiff until after the collision.

The Fourth Department also found issues of fact with respect to whether plaintiff sustained a serious injury as both plaintiff and defendant submitted conflicting expert testimony regarding the issue. The defendant’s expert relied on plaintiff’s own physician reporting full range of motion in the plaintiff’s injured left shoulder in the months immediately following the accident to substantiate the doctor’s opinion that plaintiff did not sustain a significant limitation or permanent consequential limitation of use. The Fourth Department reaffirmed case law directing it to not weigh the credibility of affiance on a summary judgement motion in finding that the battle of the experts could not be resolved as a matter of law. The Fourth Department therefore affirmed the trial court’s decision denying plaintiff’s motion to establish a serious injury.

Please feel free to contact Thomas J. Speyer, Esq. or Mark A. Forden, Esq. regarding the issues litigated in this case.

Fourth Department Reaffirms Impact of Judicial Admission by way of a Notice to Admit

In Danielle W. as p/n/g of Dominic M. v Jentsch & Co., Inc. et al. (CA 22-00442), plaintiff sued property owner and lessee after her child tripped and fell on the sidewalk in front of the defendants’ property. The defendants moved for summary judgement dismissing the complaint for lack of a dangerous or defective condition. The trial court granted the defendant’s motion and the Fourth Department, and the plaintiff appealed.

On appeal the Fourth Department affirmed the trial court’s order which granted the defendant’s motion relying on the plaintiff’s judicial admissions in response to a notice to admit. The plaintiff was served with a notice to admit containing a photograph of the sidewalk and a circle drawn by the plaintiff’s son identifying the location of his trip and fall. The plaintiff’s son specifically circled an area of the sidewalk that was not under construction or excavation. The Fourth Department reiterated the principle that while admissions made during depositions are not formal judicial admissions, an admission obtained through a notice to admit is deemed a formal judicial admission and conclusive.

The plaintiff argued in opposition to the summary judgement motion that the areas of the sidewalk under construction and excavation constituted a hazardous condition, despite the fact that plaintiff’s son identified that he tripped and fell on an area that was not under construction. Giving full force and effect to the admission of the plaintiff in response to a notice to admit, the Fourth Department affirmed the trial court’s order, finding that the plaintiff could not and did not provide any evidence of a dangerous condition located within the area circled by the plaintiff’s son.

Prepared by Richard J. Zielinski

Daily Archives: August 7, 2023

August 2023 Legal News