Israel v. D'Autilia , 255 N.Y.S.2d 324 ( 1964 )

In a negligence action to recover damages for personal injury, the defendant appeals from an order of the Supreme Court, Kings County, made December 18, 1963 after a jury trial, which: (1) set aside the jury’s verdict in her favor; (2) directed a verdict in favor of the plaintiff Steven Israel; and (3) set the action down for assessment of damages by a jury. The action by plaintiff Pauline Israel for property damage was discontinued at the trial. Order modified on the law and the facts as follows: (1) by striking out the second and third decretal paragraphs directing a verdict in favor of the plaintiff and setting the action down for an assessment of damages; and (2) by adding a decretal paragraph directing a new trial. As so modified, order affirmed, with costs to abide the event of the new trial. While it was proper in this case to set aside the jury’s verdict in defendant’s favor we believe it was improper to direct a verdict in favor of the plaintiff Steven Israel. On this record it may not be said as matter of law that the defendant was negligent in the operation of her automobile or that the plaintiff was free from contributory negligence in the operation of the motorcycle. The conduct of both parties in the operation of their respective vehicles presented issues of fact with respect to their negligence. The case should be tried de novo. Ughetta, Acting P. J., Christ, Kleinfeld, Hill and Rabin, JJ., concur.