Gray Line New York Tours, Inc. v Big Apple Moving & Stor., Inc NY Slip Op 31159(U) July 9, 2015 Supreme Court, New York County Docket Number:

Transcription

1 Gray Line New York Tours, Inc. v Big Apple Moving & Stor., Inc NY Slip Op 31159(U) July 9, 2015 Supreme Court, New York County Docket Number: /2009 Judge: Martin Shulman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication.

2 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY HON~ MARTIN SHULMAN, JS C PRESENT:. Index Number: /2009 GRAY LINE NEW YORK TOURS vs BIG APPLE MOVING Sequence Number : 006 VACATE Justice PART \_ INDEX NO. \\.lttt i '2 / o~ MOTION DATE MOTION SEQ. NO. The following papers, numbered 1 to _._, were read ~n this motion to/tlr 5l!:J= Oi.S 0e. V<!./' l tr Notice of Motion/Order to Show Cause--' Affidavits i hlllita I No(s)._\ Answering Affidavits - Exhibits A -:-C...,. I No(s). ;i.. Replying Affidavits I No(s).3 Upon the foregoing papers, it is ordered that this motion is ~ 1 /"\... ~~ v-.:>l~ ~ ~- ~si:uv"\ O\JY1&_ or~ UJ 0 ti :::>.., ~ c w a: a: w I.&. w a: > c}i'...i...i z - :::> 0 I.&. "' t ~ w a: g, C> w z a: -!!2 ~ w...i "' c(...i 0 0 I.&. -z ::c w 0 I i= a: i fz Dated:~~l'I 9 t ZDlS f \\. 0 :: ~::~: :::~~~~~~:~~; ~~~~~.~~~~.~~~~~~~~~~~~~~~~~~~~~~ ;~; ~ :::~~PO~E~ENIED 3. CHECK IF APPROPRIATE:... 0 SETTLE ORDER ) ~--=-.-z=.;8;;:::::;1'"~l ~. J.S.C. HON. MARTIN SHULMAN,. JS c,.., ~N-FINAL DISPOSITION 0 GRANTED IN PART 0 OTHER 0 SUBMIT ORDER 0 DO NOT POST 0 FIDUCIARY APPOINTMENT 0 REFERENCE

3 [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART x GRAY LINE NEW YORK TOURS, INC. and INTERNATIONAL BUS SERVICES, INC. -against- Plaintiffs, Index No: /2009 Decision and Order BIG APPLE MOVING & STORAGE, INC., and SALVADOR SKERRET, Fll.:ED Defendants x.. Hon. Martin Shulman, JSC: JUL ,S ~~YORK Plaintiffs, Gray Line New York Tour~~~s Services, Inc. (collectively, "Gray Line" or "plaintiff'), move for an order setting aside the jury verdict rendered on April 14, 2015, as against the weight of the evidence (CPLR 4404[a]). 1 Defendant, Big Apple Moving & Storage, Inc. ("Big Apple" or "defendant"), opposes the motion. Gray Line commenced this property damage action as a result of a two vehicle accident which occurred on February 11, It was essentially undisputed that Defendant, Salvador Skerret ("Skerret"), then a Big Apple employee and claimed permissive user of one of its moving trucks ("'90 International" or "Truck"), rear-ended a Gray Line tour bus stopped at a red light at the foot of the Manhattan Bridge exiting into Canal Street in Lower Manhattan. As noted by the court in a prior order denying plaintiff 1 Normally, a motion to challenge a jury verdict pursuant to CPLR 4404(a) is governed by the 15-day time limit of CPLR This Court permitted the parties to stipulate to extend their time to present written arguments. See, "(CPLR 2004; see, 4 Weinstein-Korn-Miller, NY Civ Prac 1[ )... "Brown v Two Exchange Plaza Partners, 146 AD2d 129, 140 (1 51 Dept 1989), affd76 NY2d 172 (1990).

4 [* 3] partial summary judgment on liability, among the triable issues a jury had to resolve were: (1) Did Skerret have permission to drive the Truck after work hours?; and (2) Was brake failure, the undisputed cause of the collision, expected or unexpected? (Gray Line NY Tours, Inc. v Big Apple Moving & Storage, Inc., 2013 NY Misc LEXIS 6680 [Sup Ct NY County], affd 115 AD3d 570 [1 51 Dept 2014])(see, Exhibits A and B to Spitz Opp Aff). The jury decided these issues when it rendered a defense verdict finding that although Skerret was a permissive user and negligent, his negligence was not a substantial factor in causing the motor vehicle accident. In seeking to set aside the verdict as against the weight of the evidence, plaintiff contends that the Truck's rear-end collision with Gray Line's stopped tour bus created a presumption that Big Apple was negligent, and defendant failed to rebut that presumption with a two-pronged, evidentiary showing that its Truck's brake failure was unanticipated as its brakes were kept in good working order at the time of the collision. Plaintiff points to testimonial evidence that the '90 International had brake problems negating any claim of unexpected brake failure, and highlights the purported trial record's absence of proof that the Truck brakes had been in good working order, i.e., testimonial/documentary evidence of pre-accident brake inspections, maintenance work and/or completed repair work, if needed. Thus, plaintiff urges the court to direct that judgment be entered against Big Apple on liability and set the matter down for a trial on damages. In opposition, Big Apple argues that the jury's decision and defense verdict was supported by the evidence as the jurors fully credited Skerret's testimony that: Big Apple management made a decision to take the Truck he used regularly out of service -2-

5 [* 4] the morning of February 11, 2008 (the accident date), and instructed defendant's regular staff mechanic to make whatever repairs he deemed appropriate; Skerret had implied permission to borrow the '90 International after work to perform an errand and personally found the Truck and brakes to be fully operational/properly working (indeed, this party-witness testified when he left Big Apple's lot in Brooklyn, he had been driving uneventfully for about three miles when the Truck brakes suddenly failed at the crest of the Manhattan Bridge [Spitz Opp Aff at p 6]). Under these circumstances, defendant argues, it was well within the province of the jury to conclude that while Skerret was negligent in drinking before leaving the Big Apple lot with the Truck, his conduct was not a substantial factor in causing the motor vehicle accident. Rather there was trial record evidence to support a defense verdict grounded on a non-negligent explanation for the collision, to wit, the Truck's unexpected brake failure after its faultless operation for over three miles. This court concurs. '"When weight of evidence is the issue, a verdict for the... [defendant] may not be disregarded unless the evidence so preponderates in favor of the... [plaintiff] that it could not have been reached on any fair interpretation of the evidence'..." (bracketed matter added), Moffatt v Moffatt, 86 AD2d 864 (2"d Dept 1982), affd 62 NY2d 875 (1984), and quoted with approval in Lolik v Big V Supermarkets, Inc., 86 NY2d 744, 746 (1995). Upon reviewing the testimonial evidence the parties presented, this court concludes that "there was... [a] rational basis [for the jury] to exonerate [Skerret,] the [T]ruck driver..."(bracketed matter added). LaSalle v J& T Sand & Gravel, Inc., 177 AD2d 265 (1st Dept 1991 ). Stated differently, there was sufficient evidence for the jury to find the '90 lnternational's brake failure was unexpected and constituted a non- -3-

6 [* 5] negligent explanation for the rear-end collision exonerating defendant of any vicarious liability. Jackson v Young, 226 AD2d 230 (1 51 Dept1996), Iv den, 88 NY2d 814 (1996). Accordingly, plaintiff's motion is denied in its entirety. The foregoing constitutes this court's Decision and Order. Courtesy copies of this Decision and Order have been provided to counsel for the parties. Dated: New York, New York July 9, 2015 HON. MARTIN SHULMAN, J.S.C. f \\.ED JU\.. '\ 0_ ~\\'? ~1bn0 ~~- -4-