Caserta v. Pennisi

Appellate Division of the Supreme Court of New York

Caserta v. Pennisi

33 A.D.2d 564, 305 N.Y.S.2d 351, 1969 N.Y. App. Div. LEXIS 3151

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 15, 1969

StatusPublished

Cited by1 cases

This text of 33 A.D.2d 564 (Caserta v. Pennisi) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Caserta v. Pennisi, 33 A.D.2d 564, 305 N.Y.S.2d 351, 1969 N.Y. App. Div. LEXIS 3151 (N.Y. Ct. App. 1969).

Pincite

Opinion

In a negligence action to recover damages for personal injuries, defendants Romanucci and Boston appeal from an interlocutory judgment of the Supreme Court, Kings County, entered February 28, 1969 in favor of plaintiff against them on the issues of liability only, upon a jury verdict. Interlocutory judgment reversed, on the law and the facts, without costs, and complaint dismissed. Where, as here, the evidence as to the cause of the accident is undisputed, the question as to whether any act or omission by defendants was a proximate cause of the accident is for the court, not the jury (Colban v. Petterson Lighterage & Towing Corp., 19 N Y 2d 794, 796; Tsitsera v. Erie R. R. Co., 14 N Y 2d 855; Rivera v. City of New York, 11 N Y 2d 856, 857). In our opinion, the negligence of defendant Pennisi, so gross that it rendered futile all the relatively elaborate safety measures taken by the police and the passing motorist O’Connor, was the sole proximate cause of plaintiff’s injury as a -matter of law (cf. Segar v. Foley, 19 NY 2d 733; Weber v. City of New York, 24 A D 2d 618, affd. 17 N Y 2d 790; Bolsenbroek v. Tully & Di Napoli, 12 A D 2d-376, affd. 10 N Y 2d 960; Gralton v. Oliver, 277 App. Div. 449, affd. 302 N. Y. 864). We also agree with appellants that there were errors in the charge, both in balance and in content, which would require a new trial if we were not dismissing the complaint (cf. Ortiz v. Kinoshita & Co., 30 A D 2d 334, 337). Christ, Acting P. J., Brennan, Rabin, Benjamin and Munder, JJ., concur.

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In a negligence action to recover damages for personal injuries, defendants Romanucci and Boston appeal from an interlocutory judgment of the Supreme Court, Kings County, entered February 28, 1969 in favor of plaintiff against them on the issues of liability only, upon a jury verdict. Interlocutory judgment reversed, on the law and the facts, without costs, and complaint dismissed. Where, as here, the evidence as to the cause of the accident is undisputed, the question as to whether any act or omission by defendants was a proximate cause of the accident is for the court, not the jury (Colban v. Petterson Lighterage & Towing Corp., 19 N Y 2d 794, 796; Tsitsera v. Erie R. R. Co., 14 N Y 2d 855; Rivera v. City of New York, 11 N Y 2d 856, 857). In our opinion, the negligence of defendant Pennisi, so gross that it rendered futile all the relatively elaborate safety measures taken by the police and the passing motorist O’Connor, was the sole proximate cause of plaintiff’s injury as a -matter of law (cf. Segar v. Foley, 19 NY 2d 733; Weber v. City of New York, 24 A D 2d 618, affd. 17 N Y 2d 790; Bolsenbroek v. Tully & Di Napoli, 12 A D 2d-376, affd. 10 N Y 2d 960; Gralton v. Oliver, 277 App. Div. 449, affd. 302 N. Y. 864). We also agree with appellants that there were errors in the charge, both in balance and in content, which would require a new trial if we were not dismissing the complaint (cf. Ortiz v. Kinoshita & Co., 30 A D 2d 334, 337). Christ, Acting P. J., Brennan, Rabin, Benjamin and Munder, JJ., concur.

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Bluebook (online)

33 A.D.2d 564, 305 N.Y.S.2d 351, 1969 N.Y. App. Div. LEXIS 3151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/caserta-v-pennisi-nyappdiv-1969.

Opinion

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