Opinion
2013-03-15
Alexander LIFSON, Executor of the Estate of Irene Lifson, Deceased, Plaintiff–Appellant–Respondent, v. CITY OF SYRACUSE, Defendant–Respondent, and Derek J. Klink, Defendant–Respondent–Appellant.
Faraci Lange, LLP, Rochester (Stephen G. Schwarz of Counsel), and Longstreet & Berry, LLP, Syracuse, for Plaintiff–Appellant–Respondent. Costello, Cooney & Fearon, PLLC, Syracuse (Donald S. Dibenedetto of Counsel), for Defendant–Respondent–Appellant.
Faraci Lange, LLP, Rochester (Stephen G. Schwarz of Counsel), and Longstreet & Berry, LLP, Syracuse, for Plaintiff–Appellant–Respondent. Costello, Cooney & Fearon, PLLC, Syracuse (Donald S. Dibenedetto of Counsel), for Defendant–Respondent–Appellant.
Mary Anne Doherty, Corporation Counsel, Syracuse (Ann Magnarelli Alexander of Counsel), for Defendant–Respondent.
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND MARTOCHE, JJ.
MEMORANDUM:
Plaintiff appeals and Derek J. Klink (defendant) cross-appeals from an order directing that “a single de novo trial [be conducted] to determine the liability/culpable conduct of all parties” upon remittal of the matter by the Court of Appeals to Supreme Court ( Lifson v. City of Syracuse, 17 N.Y.3d 492, 498, 934 N.Y.S.2d 38, 958 N.E.2d 72). Plaintiff's decedent (decedent) was struck by a vehicle driven by defendant while she was crossing a street in defendant City of Syracuse (City). On a prior appeal, we affirmed the judgment following a bifurcated trial on liability determining that defendant was not at fault; that the City was 15% at fault; and that decedent was 85% at fault ( Lifson v. City of Syracuse [appeal No. 2], 72 A.D.3d 1523, 1524, 900 N.Y.S.2d 568revd. insofar as appealed from17 N.Y.3d 492, 934 N.Y.S.2d 38, 958 N.E.2d 72). The Court of Appeals reversed so much of the order of this Court that determined that Supreme Court did not err in giving an emergency instruction with respect to defendant's assertion that he did not see decedent crossing the street because he was temporarily blinded by sun glare. The Court of Appeals concluded that the error was not harmless because it could have affected the outcome of the trial, reinstated the amended complaint with respect to defendant and remitted the matter to Supreme Court for further proceedings “consistent with this opinion” ( Lifson, 17 N.Y.3d at 498, 934 N.Y.S.2d 38, 958 N.E.2d 72).
We agree with plaintiff and defendant that the court erred in directing that a de novo trial be conducted “to determine the liability/culpable conduct of all parties” inasmuch as the liability of the City and decedent was established in the first trial and the court's error with respect to the jury charge affected only the determination of defendant's liability ( see Marus v. Village Med., 51 A.D.3d 879, 881, 858 N.Y.S.2d 735;see generally Ferrer v. Harris, 55 N.Y.2d 285, 289–290, 449 N.Y.S.2d 162, 434 N.E.2d 231,remittitur amended56 N.Y.2d 737, 451 N.Y.S.2d 740, 436 N.E.2d 1342). We agree with the Second Department's conclusion in Marus that the jury should be directed that the City and decedent were at fault, “but that the issues of the percentage of [their] fault must be considered in conjunction with the percentage of fault, if any, of [defendant]” ( Marus, 51 A.D.3d at 881, 858 N.Y.S.2d 735). We therefore modify the order accordingly. Contrary to the City's contention, our decision in Braun v. Rycyna, 100 A.D.2d 721, 722, 473 N.Y.S.2d 627 does not compel a different result. In Braun, we directed a new trial on liability with respect to all the defendants, in the interest of justice, because the theory of liability with respect to each defendant in that medical malpractice actionwas the same and the court's error in granting the motion of one defendant to dismiss the action against it at the close of proof could have impacted the verdict with respect to the remaining defendants ( id.; see Gruntz v. Deepdale Gen. Hosp., 163 A.D.2d 564, 566–567, 558 N.Y.S.2d 623). Here, the theories of liability with respect to defendant and the City are unrelated, and we therefore conclude that the erroneous jury charge, directed only at defendant's liability, did not impact the jury's verdict with respect to the City's liability.
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting the motion of plaintiff insofar as it seeks a new trial to determine the liability of defendant Derek J. Klink only and granting the cross motion of that defendant insofar as it seeks to include in the trial the issue of the apportionmentof liability among defendants and plaintiff's decedent, and by vacating the second ordering paragraph, and as modified the order is affirmed without costs.