Gayle v. City of New York , 682 N.Y.S.2d 426 ( 1998 )

—In an action to recover damages for personal injuries, etc., the defendant City of New York appeals from a judgment of the Supreme Court, Kings County (Gary, J.), entered March 14, 1996, which, upon a jury verdict, is in favor of the plaintiffs and against it in the principal sum of $13,550,085. By decision and order dated February 9, 1998, this Court reversed the judgment and dismissed the complaint (see, Gayle v City of New York, 247 AD2d 431). In an opinion dated October 20, 1998, the Court of Appeals reversed the decision and order of this Court, held that the plaintiffs met their burden of proving a prima facie case as a matter of law, and remitted the matter to this Court for consideration of the facts and issues raised but not previously considered on appeal (see, Gayle v City of New York, 92 NY2d 936).

Ordered that the judgment is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for a new trial in accordance herewith.

The plaintiff Kenneth Gayle was injured when his car skidded on a wet roadway and collided with a parked trailer. He claims that he lost control of the car when it reached a large puddle which had formed on the roadway due to the negligence of the defendant City of New York in maintaining proper drainage. However, there were no eyewitnesses and, as a result of injuries sustained in the accident, Gayle had a limited recollection of the accident. The jury returned a verdict against the City, absolving Gayle of negligence. This Court reversed the judgment and dismissed the complaint (see, Gayle v City of New York, 247 AD2d 431, supra). The Court of Appeals reversed, finding that the plaintiffs met their burden of proving a prima facie case as a matter of law (see, Gayle v City of New York, 92 NY2d 936, supra). Upon remittitur, we have considered the remaining issues raised but not previously determined, and now conclude that several errors committed by the trial court warrant a new trial.

The court charged the jury that due to his amnesia, Gayle had a lesser degree of proof than a plaintiff who could describe the occurrence. However, Gayle was not entitled to this so-called Noseworthy charge (see, Noseworthy v City of New York, 298 NY 76; Schechter v Klanfer, 28 NY2d 228) since the City had no more knowledge of the events surrounding the accident than Gayle did. Where, as here, the parties are on equal footing insofar as accessibility to the facts (see, Wright v New York City Hous. Auth., 208 AD2d 327), there is no need to afford preferential treatment to Gayle (cf., Noseworthy v City of New York, supra; see, Schechter v Klanfer, supra).

The court also erred in denying the City’s request to charge that a violation of New York City Traffic Regulation § 60 (c) (34 RCNY 4-06 [a] [3]) constituted some evidence of negligence. This regulation provides that no person shall drive a vehicle at a speed greater than the speed that is reasonable and prudent under the conditions then existing, while also taking into account any potential hazards. Gayle’s own expert testified that after first reaching the water, Gayle’s car continued to travel for approximately 300 feet, spun, struck a tree, and collided with a trailer while still traveling at a speed of 15 miles per hour. The testimony of Gayle and his wife showed that he was familiar with the pooling condition at this location, and had seen several puddles before reaching the one which allegedly caused his accident. It could be reasonably inferred from this evidence that Gayle was driving at a speed which was imprudent for the existing road conditions. A regulation establishing a standard of conduct should be charged if there is evidence in the record to support a finding that the regulation was violated (see, Hardy v Sicuranza, 133 AD2d 138; Gamar v Gamar, 114 AD2d 487; 1A NY PJI3d 219-220).

The City sought to introduce into evidence the results of a search of police department records which showed that none of the 8 to 10 accidents reported at that site during the two-year period preceding Gayle’s accident was caused by an accumulation of water. The court should have admitted this evidence with a limiting instruction that the evidence was a factor for consideration and not conclusive on the issue of negligence (see, Orlick v Granit Hotel & Country Club, 30 NY2d 246; Wozniak v 110 S. Main St. Land & Dev. Improvement Corp., 61 AD2d 848).

In light of our determination, we need not address the City’s remaining contentions, including its claim that the verdict was excessive. However, in the event of a second judgment against the City, we note that the court may impose a rate of interest on the judgment of less than 9% (see, Rodriguez v New York City Hous. Auth., 91 NY2d 76). Thompson, J. P., Sullivan and Joy, JJ., concur.