Eichenholtz v. Livery Service Corp.

In a negligence action to recover damages for personal and property injuries, defendant appeals from an interlocutory judgment of the Supreme Court, Queens County, dated February 29, 1972, in favor of plaintiff on the issue of liability, upon a jury verdict, after trial on that issue only. Interlocutory judgment reversed, on the law, and new trial granted, with costs to abide the event. The court has considered the questions of fact and has determined that it would not grant a new trial upon those questions. In our opinion, section 1201 of the Vehicle and Traffic Law should not have been charged to the jury. The applicable law to be charged should have been the pertinent provisions of the Traffic Regulations of the City of New York (Vehicle and Traffic Law, § 1642; Giordano v. Sheridan Maintenance Corp., 38 A D 2d 552). Defendant’s erroneous request to charge subdivision (b) of section 1201 of the Vehicle and Traffic Law, because the Trial Justice had already charged subdivision (a) of that section, only compounded the error in the charge in making any reference to section 1201. Under the circumstances of this ease, defendant’s request to charge subdivision (b) of section 1201 of the Vehicle and Traffic Law and its failure to request to charge the applicable provisions of the Traffic Regulations of the City of New York do not estop defendant from raising, on appeal, the inadequacies of the charge. Hopkins, Acting P. J., Munder, Gulotta, Brennan and Benjamin, concur.