The following numbered papers read on this motion by Plaintiff, Frances Melia, for, inter alia, an order setting aside the jury verdict in favor of defendant, Bishwanan Jagmohan, and ordering a new trial on liability pursuant to CPLR 4404(a).Papers NumberedNotice of Motion-Affidavits-Exhibits 1-4Affirmation in Opposition-Memorandum of Law-Exhibits 5-8Replying 9-11Sur-Reply 12 Upon the foregoing cited papers, it is ordered that Plaintiff’s motion for an order setting aside the jury verdict in favor of defendant, Bishwanan Jagmohan (Defendant-Jagmohan), and ordering a new trial on liability, or alternatively, directing said verdict in favor of Plaintiff as a matter of law, pursuant to CPLR 4404(a); or in the alternative, for an order granting Plaintiff leave to renew or reargue this trial Court’s decision, which denied Plaintiff’s post-trial oral application, pursuant to CPLR 2221, to set aside the jury verdict pursuant to CPLR 4404(a), is determined as follows:BACKGROUNDPlaintiff, pedestrian, who was 92 years old on the date of the accident, commenced the instant action to recover for injuries she allegedly sustained on May 12, 2014, when she was struck by a truck, owned and operated by Defendant-Jagmohan, while she was walking in the crosswalk on Metropolitan Avenue at the intersection of 75th Street, Queens, New York. Plaintiff’s most notable injury is the loss of her right leg.In short, this action was initially commenced as two separate actions against several defendants; subsequently, some of the defendants were granted summary judgment and the two actions were consolidated for all purposes under this action, Index No. 708307/2015. The matter was initially scheduled to appear before the Trial Scheduling Part on March 5, 2018, to set a date for trial against the two remaining defendants, namely, Country-Wide Insurance Company (CWIC) and Jagmohan, in this action. On February 27, 2018, by way of an Emergency Order to Show Cause (EOSC), CWIC moved to sever the action; consequently, the Hon. Kevin J. Kerrigan, J.S.C. issued an Order dated March 14, 2018, which ordered that CWIC be severed from the instant action and directed Plaintiff to purchase a new index number for the severed action.On April 27, 2018 and April 30, 2018, a jury was selected. This bifurcated trial commenced on May 1, 2018 and concluded on May 2, 2018; the jury reached a liability verdict that same day. The jury found that Defendant-Jagmohan was negligent, however, that his negligence was not a substantial factor in causing the subject accident. Plaintiff’s counsel made a post-verdict oral application to set aside the verdict, which was denied by this Court. Plaintiff now seeks an order, inter alia, setting aside the verdict in favor of Defendant-Jagmohan and directing said verdict in favor of Plaintiff as a matter of law.DISCUSSIONA jury verdict should not be set aside as against the weight of the evidence, unless the jury could not have reached such verdict by any fair interpretation of the evidence (see Moffett-Knox v. Anthony’s Windows on Lake, Inc., 126 A.D.3d 768, 768 [2d Dept. 2015]). “A jury’s finding that a party was at fault but that such fault was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause” (Id. at 768, quoting Garrett v. Manaser, 8 A.D.3d 616, 617 [2d Dept. 2004]).In support of this motion, Plaintiff submits, inter alia, the examination before trial (EBT) of Plaintiff, the EBT of Defendant-Jagmohan, and the subject trial’s transcript. Plaintiff avers that on the date of the accident she was crossing Metropolitan Avenue within the crosswalk when Defendant-Jagmohan’s truck struck her; she avers that before she entered the crosswalk, the pedestrian control signal displayed a white walking person, indicating that she may cross the street. Further, other pedestrians entered the crosswalk and were crossing the road at the same time. Defendant-Jagmohan admitted that he never saw Plaintiff before or while his truck struck her, hence, he did not sound his horn to warn her of danger. Defendant-Jagmohan had a statutory duty to use due care to avoid hitting pedestrians in the roadway, in addition to a common-law duty to see what there is to be seen. It is undisputed that Defendant-Jagmohan’s truck struck Plaintiff. Plaintiff argues that Defendant-Jagmohan’s violation of such duties was negligence and a substantial factor in causing the accident; therefore, the jury’s verdict could not have been reached on any fair interpretation of the evidence.In opposition, Defendant submits, inter alia, an attorney affirmation and a memorandum of law. Defendant argues, inter alia, that credibility issues concerning Plaintiff were raised during trial. Regarding the jury’s verdict being inconsistent, Defendant cites several cases and states that the jury could have found that Defendant-Jagmohan’s negligence was separate and distinct and not a proximate cause of the accident. The Court finds Defendant’s conclusory statement failed to show how such case law applied to the instant action. Defendant heavily relies upon this Court’s reasoning for denying Plaintiff’s post-verdict oral application to set aside the verdict; however, upon further deliberation and after review of the transcripts and applicable law, the Court hereby recalls that decision.Plaintiff correctly argues that the jury’s determination that Defendant-Jagmohan’s negligence was not a proximate cause of the accident did not rest upon any fair interpretation of the evidence. Here, the issues of negligence and proximate cause are so inextricably interwoven that the jury’s finding that Defendant-Jagmohan was negligent cannot be reconciled with its finding that such negligence was not a proximate cause of the accident (Id.; Cruz v. Jeffrey, 138 A.D.3d 1057, 1058 [2d Dept. 2016]; see Larsen v. Spano, 35 A.D.3d 820, 822 [2d Dept. 2006]). That is, Defendant-Jagmohan admitted the following: (i) that there was a blind spot directly in front of his truck of approximately one foot to a couple of feet; (ii) that, immediately before the subject accident, the traffic control device for him was red; he stopped his truck between the thick-double-white-lines, which was just a couple of feet from the crosswalk; (iii) that he would not be able to see anything or anyone shorter than the hood of his truck within one foot to a couple of feet in front of his truck; (iv) that he never saw Plaintiff before the accident; (v) that his truck struck Plaintiff and her shopping cart; (vi) that he did not see his truck strike Plaintiff; (vii) that he heard a noise when his truck struck Plaintiff, which he believed to be the sound of striking a bicycle; such noise indicated to him that something was wrong; (viii) that, when his truck struck Plaintiff, bystanders were waving and calling for Defendant-Jagmohan to stop his truck; subsequently, he stopped his truck; and (ix) that he did not see Plaintiff until after the accident when he was out and in front of his truck.Although the Court finds that credibility issues concerning Plaintiff may exist, it finds that such issues do not affect the fact that Defendant’s negligence was a substantial factor in causing the accident. Defendant admitted innumerable times that he never saw Plaintiff before or while his truck struck Plaintiff; “the defendant had a statutory duty to use due care to avoid colliding with pedestrians on the roadway (see Vehicle and Traffic Law §1146), as well as a common-law duty to see that which he should have seen through the proper use of his senses” (Barbieri v. Vokoun, 72 A.D.3d 853, 856 [2d Dept. 2010]). Defendant violated said duties; such violation of the Vehicle and Traffic Law (VTL) §1146 was a substantial factor in bringing about the accident. To argue the inverse would mean that Defendant did not violate the statutory and common-law duty of care, i.e., he saw Plaintiff and still struck her with his truck; if this was a logical conclusion under the circumstances, it would be an intentional act and the Court would be obliged to refer this case to the District Attorney’s office.Notwithstanding any negligence on the part of Plaintiff, Defendant-Jagmohan’s negligence, in failing to see what was there to be seen, was a substantial factor in causing the subject accident (see Cruz, 138 A.D.3d at 1058; Larsen, 35 A.D.3d 822). In this case, the issues of negligence and proximate cause are so inextricably interwoven that the jury finding that Defendant was negligent cannot be reconciled with its finding that his negligence was not a proximate cause of the accident and was against the weight of the evidence (Id.; Barbieri, 72 A.D.3d at 856). There was no valid line of reasoning or permissible inferences that could have lead a rational jury to find that Defendant’s violation of VTL §1146 was not a substantial factor in causing the subject accident1 (Salazar v. City of New York, 302 A.D.2d 580, 581 [2d Dept. 2003]).Under the circumstances, any credibility issues concerning Plaintiff is only relevant to the issue of comparative fault, which will be resolved in the damages portion of the trial. Based on the recent decision in Rodriguez v. City of New York, the Court analogizes this decision to one granting partial summary judgment and leaving the issue of comparative fault of Plaintiff to be determined at the damages trial, along with apportionment of liability of both parties (31 N.Y.3d 312 [2018]). This trial Court applies that same reasoning as applied in Rodriguez; that is, that Plaintiff’s comparative negligence should be pleaded and proved by Defendant and it is only relevant to the mitigation of Plaintiff’s damages (Id. at 321).Accordingly, Plaintiff’s motion is partially granted to the extent that the Court is setting aside the jury verdict in favor of Defendant-Jagmohan, directing the verdict in favor of Plaintiff, to the extent that Defendant’s negligence was a proximate cause in bringing about the accident. Further, the Court is ordering that the case is to proceed to trial on the issue of damages, which encompasses the issues of comparative fault as to Plaintiff and the apportionment of fault as to both parties, pursuant to CPLR 4404(a) (see Id.; Garrett, 8 A.D.3d 616), and the motion is otherwise denied.Furthermore, this trial Court’s decision made on the record on May 2, 2018, which denied Plaintiff’s post-trial oral application to set aside the jury verdict pursuant to CPLR 4404(a), is hereby recalled and substituted with the foregoing.Both parties are hereby ordered to appear before this Court in Part 40, Courtroom B-10 on Friday, August 24, 2018 at 9:30 A.M., located at 25-10 Court Square, Long Island City, New York, 11101, for trial on the issue of damages as against Defendant-Jagmohan, including the issues of comparative fault attributed to Plaintiff and the apportionment of liability against both parties.Plaintiff is directed to serve a copy of this order upon Defendant’s attorney and the Clerk of the Supreme Court, Queens County, within ten (10) days of the date of this order, together with notice of entry.This constitutes the decision and order of the Court.Dated: July 30, 2018
