Opinion
February 22, 1971
In consolidated negligence actions to recover damages for personal and property injuries, etc., plaintiffs Rose appeal (1) from so much of a judgment of the Supreme Court, Suffolk County, entered September 29, 1969, upon a jury verdict after a trial limited to the issue of liability, as is (a) in favor of defendants Bailey, dismissing the causes of action of plaintiffs Rose for personal injury and loss of consortium, and (b) in favor of defendants Bailey on a cause of action for property damage against plaintiffs Rose, determining the latter's liability thereon, and (2) from an order of the same court entered January 5, 1970, which denied a motion by plaintiffs Rose to set aside the verdict and for a new trial, on the ground of newly discovered evidence. Judgment modified, on the law, by striking the following from the first and second lines of the second decretal paragraph thereof: "Susan Bailey and". As so modified, judgment affirmed, without costs. The findings of fact are affirmed. The Bailey cause of action for property damage was by Bailey Service Station, Inc., only and the verdict thereon was in favor of that party only. The judgment therefore should not have been in favor of Susan Bailey, in addition to the corporation, on that cause. Order affirmed, on the opinion of Mr. Justice RITCHIE on the post-trial motion, with the further observations set forth below. Respondents are awarded a single bill of costs, to cover both appeals. In our opinion the verdict was not against the weight of the credible evidence and there was no improvident exercise of discretion in the trial court's denial of the motion for a new trial. The presence of Adams at the accident scene was not only known to the plaintiffs Rose before the trial but was fully disclosed to the jury in testimony and argument. The prompt discovery of his whereabouts after the trial shows either a lack of diligence in locating him before the trial or a calculated tactical risk in proceeding to trial without him and without seeking an adjournment because of his absence. We note, too, that Adams has continuously resided in Suffolk County since the date of the accident, except for one month, March 15, 1969 to April 15, 1969, when he lived with his wife's parents at Floral Park in Nassau County.
In my opinion it was error to deny the motion of the plaintiffs Rose for a new trial on the ground of newly discovered evidence. The facts adduced at the trial indicated that the automobile of the defendants Bailey drove off the left westbound lane of the Long Island Expressway and onto a grass median. It thereafter re-entered the highway, heading north across the westbound lanes, and collided with the Adams vehicle. The pickup truck of plaintiff Rosemarie Rose thereupon collided with the Bailey vehicle. Defendant Susan Bailey and plaintiff Jerry Rose were the only eyewitnesses to testify at the trial. Bailey testified that the Rose truck had been tailgating her vehicle and that that conduct was a cause of her driving onto the median. Rose testified that his truck had not been directly behind the Bailey vehicle, but had been separated from it by the Adams vehicle. The jury's verdict indicated that it found both Jerry Rose and Susan Bailey negligent. The verdict apparently resulted because the jury credited the testimony of Susan Bailey rather than that of Jerry Rose. The affidavits submitted on the motion for a new trial indicated that the Roses, who had retained a private investigator, were not able, with the exercise of due diligence, to locate Adams prior to the trial. Their motion was timely made. Adams' affidavit corroborated Jerry Rose's testimony and asserted that the Bailey vehicle had been too close to the automobile ahead of it immediately before it left the highway and drove onto the median. In order to justify a new trial, the moving papers should demonstrate that the new evidence is not merely cumulative and the probability of a different verdict were the new facts to be introduced (cf. Cizler v. Cizler, 19 A.D.2d 819; Amalfi v. Post McCord, 250 App. Div. 408). I believe that plaintiffs Rose have adequately demonstrated the probability that there would be no finding of contributory negligence on the part of Jerry Rose on a new trial. Adams' testimony cannot be regarded as merely cumulative. In the usual case cumulative evidence is not of such a character that it would be likely to alter the result. This is not the case when the proffered evidence is that of the only disinterested witness to the occurrence. In such instance the cumulative nature of the newly discovered evidence need not act as a bar to a new trial ( Wisniewski v. Wysocki, 36 N.Y.S.2d 712; Pitelli v. City of New York, 88 N.Y.S.2d 513). I do not believe that the failure of the plaintiffs Rose to seek an adjournment of the trial in order to gain additional time in which to locate Adams should have affected the outcome of the motion. At the time they proceeded to trial they had sought and failed to locate him and had no reason to believe that his whereabouts would be discovered in the near future. Accordingly, the order should be reversed, the motion of the plaintiffs Rose for a new trial granted and the judgment vacated. Munder, Acting P.J., Martuscello and Brennan, JJ., concur; Shapiro and Benjamin, JJ., dissent and vote to reverse the order, to grant the motion of plaintiffs Rose for a new trial and to vacate the judgment, with an opinion by Shapiro, J., in which Benjamin, J., concurs. Judgment modified, etc.