Policastro v. Savarese

Lawrence, J.

concurs in part and dissents in part, and votes to grant the Incorporated Village of Lake Grove a new trial, with the following memorandum: I concur with my colleagues with regard to all the issues raised on these appeals, except the claims with regard to the liability of the defendant Incorporated Village of Lake Grove.

As noted by the majority, the general claim against the Village was that it had failed to maintain in a safe condition Stony Brook Road and Pond Path. There was extensive testimony presented by both lay and expert witnesses with regard to three theories of liability against the Village: (a) the alleged improper markings and lack of markings on the roadways, (b) the alleged improper signs and lack of signs on the roadways, and (3) an alleged defect in the roadways, which purportedly might cause a vehicle to slide to the wrong side of Pond Path, when it entered that road from Stony Brook Road.

At the conclusion of all of the testimony, the trial court, in effect, dismissed two theories of liability as against the Village. Specifically it indicated that in its final charge to the jury, it would instruct them that the alleged misplacement or lack of markings or signs on the roadways were not proximate causes of the accident as a matter of law and the jury was not to consider those claims, relying on Atkinson v County of Oneida (59 NY2d 840). In addition, the trial court indicated that it would sustain an objection to any summation comments that those factors were a proximate cause of the accident.

In compliance with the trial court’s ruling, none of the attorneys made any reference in their summations to the alleged misplacement or lack of markings or signs on the roadways during their comments concerning the proximate causes of the accident. After summations, the counsel for the Village formally requested the trial court to instruct the jury in its final charge not to consider the alleged misplacement or lack of markings or signs on the roadways. Despite its earlier ruling, the trial court denied the request, noting that it would simply not mention the subject. During its charge to the jury, the trial court did not limit the jury to a consideration of the alleged defect in the roadways which might cause a vehicle to slide. Rather, the jury was specifically instructed that they could consider all of the testimony they had heard, and that certain expert witnesses had given their opinions "with respect to how the accident occurred and what various factors contributed to it”. Thus, the trial court’s instructions clearly permitted the jury to consider the alleged misplacement or lack of markings or signs on the roadways.

While there may have been sufficient evidence upon which the jury could find the Village liable based on the alleged defect in the roadways, the jury did not indicate the basis for its liability verdict. Therefore, I cannot conclude that the Village, which was found 5% at fault in the happening of the accident, was not prejudiced by the trial court’s rulings (see, Wirth v De Vito, 74 AD2d 827; see also, Cumbo v Valente, 118 AD2d 679). Specifically, in light of the trial court’s initial ruling concerning its charge to the jury, the counsel for the Village reasonably refrained from commenting in his summation on the extensive testimony concerning the alleged misplacement or lack of markings or signs on the roadways. Further, the trial court’s subsequent refusal to specifically instruct the jury as requested by counsel for the Village resulted in a confusing charge which failed to fully inform the jurors how they were to apply the facts to the law.

Accordingly, under these circumstances, I find that the Village is entitled to a new trial on the issue of its liability and if necessary, a new determination on the apportionment of fault.