Avila v. Cohen

37 A.D.2d 987, 327 N.Y.S.2d 685, 1971 N.Y. App. Div. LEXIS 2915

Opinion

In a negligence action to recover damages for personal injuries, defendant appeals from an interlocutory judgment of the Supreme Court, Rockland County, entered June 16, 1970, in favor of plaintiffs on the issue of liability, upon a jury verdict. Judgment reversed, on the facts, and new trial granted, with costs to abide the event. The infant plaintiff sustained injuries when the bicycle which he was riding on a public highway came into contact with a vehicle owned and operated by defendant. It appears that the accident happened when the infant plaintiff suddenly moved to the left, either to avoid a storm drain or to enter a shopping center on the opposite side of the road. Under the circumstances, the finding of the jury, implicit in its verdict, that he was free of contributory negligence is contrary to the weight of the evidence. Rabin, P. J., Munder* and Shapiro, JJ., concur; Hopkins and Martuseello, JJ., dissent and vote to affirm.