Culley v. City of New York

25 A.D.2d 519, 267 N.Y.S.2d 282, 1966 N.Y. App. Div. LEXIS 4865

Opinion

Judgment dismissing the complaint, unanimously reversed on the law, and a new trial ordered on the combined issues of liability and damages, with $50 costs and disbursements to the appellant to abide the event. It is our opinion that the eourt should not have set aside the jury’s verdict and should not have directed a judgment for the defendant and dismissed the complaint. The evidence with respect to the negligence of the city presented a question of fact, which was within the jury’s province to determine. However, we may not direct the reinstatement of the verdict for the reason that it is not possible to determine, from this record, whether the negligence of the city as asserted by the plaintiff was the proximate cause of the injuries of which he complained. Accordingly, a new trial must be ordered. The practice of holding separate trials in negligence actions — first on liability, and then on damages — is not to be discouraged. However, where the nature of the plaintiff’s injuries has an important bearing on the issue of liability, a separate trial should not be ordered. Such proved to be the case here. In order for plaintiff to prove his ease he must show that his injuries were in fact caused by defendant’s negligence. We cannot draw that conclusion from the record in this ease. Essential to such determination is the nature and type of injuries. It is for that reason that we direct that liability and damages should be tried together on the retrial.

Concur — Breitel, J. P., Rabin, Stevens, Steuer and Bastow, JJ.