Kovit v. Estate of Hallums , 690 N.Y.S.2d 82 ( 1999 )

—In an action to recover damages for personal injuries, the defendant City of New York appeals from a judgment of the Supreme Court, Kings County (Rappaport, J.), dated April 8, 1996, which, upon a jury verdict on the issue of liability finding it 100% at fault in the happening of the accident and upon a jury verdict on the issue of damages awarding the plaintiff Lewis Kovit the sum of $10,355,720 and the plaintiff Marie Kovit the sum of $200,000, and upon denying its motion pursuant to CPLR 4404 to set aside the verdict, is in favor of the plaintiffs and against it.

Ordered that the judgment is reversed, on the law and the facts, and a new trial is granted as to both liability and damages, with costs to abide the event.

The decedent of the defendant estate (hereinafter the decedent) was driving her vehicle when it collided with a vehicle owned by the New York City Health and Hospitals Corporation (hereinafter HHC). The occupants of the HHC vehicle, who were in radio contact with a nearby HHC hospital, advised HHC employees of the accident. The plaintiff Lewis Kovit, an HHC employee, later came to the scene of the accident, along with several New York City police officers. At some point, the decedent, in response to the command she had received from one of the responding police officers, and with the apparent purpose of clearing the intersection, backed up her car in such a way as to pin Kovit against a van driven by the defendant John Feliciano, who had entered the intersection while driving his van. This accident resulted in serious injuries, which ultimately necessitated an above-the-knee amputation of Kovit’s right leg.

The verdict on liability rendered by the jury found that the City of New York (hereinafter the appellant) was 100% at fault in the happening of the accident. This conclusion was apparently based on the theory that the police officer who directed the decedent to move her vehicle did so in negligent disregard of the circumstances which prevailed in the aftermath of the initial collision. Although the jury concluded that the decedent was, in fact, also negligent, the jury found that the decedent’s negligence was not a proximate cause of the accident. We agree with the appellant that this verdict is against the weight of the evidence.

In a case involving injuries caused to a pedestrian as the result of contact with an automobile, it is logically inconsistent to find that the established negligence of the person at the wheel of the automobile in question had no causal relationship with respect to the plaintiffs injuries, while the established negligence of a third person, who directed the driver to move the vehicle, did have such a causal relationship. While the attribution of negligence to both of these parties may be reasonable, we see no valid basis upon which the jury could have concluded that the negligence of the officer, but not the negligence of the driver, was a substantial factor in causing the accident. Indeed, regardless of the fact that the decedent may have moved her car in response to the officer’s commands, she remained the sole operator of the vehicle which struck Kovit. This was not a situation where an intervening action occurred so as to render the decedent’s operation of her vehicle a less significant cause of Kovit’s injuries (see generally, Derdiarian v Felix Constr. Corp., 51 NY2d 308; Root v Feldman, 185 AD2d 409). The police officer directed the decedent to move her car, she did so negligently, and Kovit was thereby injured. Under these circumstances, the issues of negligence and proximate cause are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause (see, Pimpinella v McSwegan, 213 AD2d 232; Petioni v Grisi, 155 AD2d 366; see also, Hernandez v Baron, 248 AD2d 440; Schaefer v Guddemi, 182 AD2d 808).

Accordingly, based upon all of the facts and circumstances revealed in the record of trial, we conclude that the jury’s verdict on the issue of liability is against the weight of the evidence (see generally, Nicastro v Park, 113 AD2d 129).

The remaining issues raised on appeal are academic in light of the foregoing determination. Bracken, J. P., Santucci and Florio, JJ., concur.