Dillon v. Kaminsky

256 A.D.2d 483, 682 N.Y.S.2d 104, 1998 N.Y. App. Div. LEXIS 13610

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 17, 1998
• Status: Published

Opinions

—In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Queens County (Lonschein, J.), dated June 16, 1997, which upon a jury verdict on the issue of liability, is in favor of the defendants and against her, dismissing the complaint.

Ordered that the judgment is modified, on the law, by deleting the provision thereof which dismissed the plaintiff’s complaint against the defendant Michael J. Kaminsky, as administrator of the estate of Charles H. Roll, and substituting therefor a provision severing the action against the remaining defendant; as so modified, the judgment is affirmed, with costs to the plaintiff payable by the defendant Michael J. Kaminsky, as administrator of the estate of Charles H. Roll, and the matter is remitted to the Supreme Court, Queens County, for a trial on the issue of damages against the defendant Michael J. Kaminsky, as administrator of the estate of Charles H. Roll, in accordance herewith.

The plaintiff was injured in an automobile accident when the car in which she was riding, driven by the decedent Charles H. Roll (who died of unrelated causes long after the accident), went off the road and into a nearby ravine.

The uncontroverted evidence at trial established that Roll told a police officer, at the scene, that he had fallen asleep or lost control of the car. He testified similarly at a subsequent administrative motor vehicle proceeding that he had fallen asleep and lost control of the car. There was no valid line of reasoning that could have led to the jury’s finding that Roll was not at fault for the accident and, accordingly, the jury verdict in favor of Michael J. Kaminsky, as administrator of Roll’s estate, must be set aside and judgment awarded to the plaintiff against him on the issue of liability as a matter of law (see, Cohen v Hallmark Cards, 45 NY2d 493, 498-499). Therefore, the matter is severed and remitted for a trial on the issue of damages against Kaminsky. Rosenblatt, J. P., O’Brien and McGinity, JJ., concur.