Gotoy v. City of New York

249 A.D.2d 268, 670 N.Y.S.2d 592, 1998 N.Y. App. Div. LEXIS 3770

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 6, 1998
• Status: Published

Opinions

—In an action to recover damages for personal injuries, the defendants City of New York and New York City Police Department and the defendant Louis Legget separately appeal from a judgment of the Supreme Court, Kings County (Barasch, J.), dated February 1, 1996, which, upon a jury verdict finding the defendants City of New York and New York City Police Department 60% at fault in the happening of the accident, and the defendant Louis Legget 40% at fault in the happening of the accident, inter alia, is in favor of the plaintiff and against the defendants in the sum of $160,000 for past lost earnings and $1,200,000 for future lost earnings; the plaintiff cross-appeals from the same judgment.

Ordered that the appeal of the defendant Louis Legget and the cross appeal are dismissed as abandoned, without costs or disbursements; and it is further,

Ordered that the judgment is modified, on the law and the facts, and as a matter of discretion, (1) by deleting the provisions thereof which awarded damages to the plaintiff for past lost earnings and future lost earnings, and substituting therefor a provision severing the plaintiff’s causes of action to recover damages for past lost earnings and future lost earnings, and granting a new trial with respect thereto, and (2) by deleting the provision thereof which awarded interest on the judgment at the rate of 9%, and remitting the matter to the Supreme Court, Kings County, for a determination of the rate of interest in accordance herewith; as so modified, the judgment is affirmed, with costs, unless within 30 days after service upon him of a copy of this decision and order, with notice of entry, the plaintiff shall serve and file in the office of the Clerk of the Supreme Court, Kings County, a written stipulation consenting to reduce the verdict as to damages for past lost earnings from the sum of $160,000 to the sum of $145,000 and as to damages for future lost earnings from the sum of $1,200,000 to the sum of $775,000, and to the entry of an appropriate amended judgment in his favor; in the event that the plaintiff so stipulates, then the judgment, as so reduced, amended, and modified, is affirmed insofar as appealed from by the City of New York and the New York City Police Department, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County; for the entry of an appropriate amended judgment with the rate of interest to be determined by the court in accordance herewith.

The contention of the defendants City of New York and New York City Police Department (hereinafter the City defendants) that the plaintiff failed to establish the existence of a “special relationship” between the municipality and the plaintiff (see, Cuffy v City of New York, 69 NY2d 255, 260) is unpreserved for appellate review (see, Velez v City of New York, 157 AD2d 370, 372-373).

The City defendants further contend that, even if the police were negligent in rendering assistance to the plaintiff, their negligence was not the proximate cause of his injuries because the defendant Louis Legget’s act of colliding with the plaintiff’s disabled vehicle was a superseding, intervening act relieving them of liability. However, when, as here, the intervening act is a natural and foreseeable consequence of the circumstances created by the defendants, the causal connection is not severed (see, Kush v City of Buffalo, 59 NY2d 26, 33).

Contrary to the City defendants’ contention and the conclusion reached by our dissenting colleagues, the court did not err in failing to submit the issue of the plaintiff’s comparative negligence to the jury inasmuch as there was no valid line of reasoning or permissible inferences which could have led a rational jury to conclude that the plaintiff was negligent (see, Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 517). There was no evidence that the plaintiff failed to follow the police officer’s safety instructions. When the officer arrived at the scene, the plaintiff asked him if he had any flares. The officer asked the plaintiff if he knew how to use the flares and the plaintiff said that he did not. According to the plaintiff, the officer nevertheless handed him a flare and instructed him in its use. The officer, on the other hand, testified that he offered the plaintiff a flare, but when the plaintiff indicated that he did not know how to use it, the officer did not give him one. Irrespective of that conflict in the testimony, which we note the jury resolved in favor of the plaintiff since it specifically found that the officer gave the plaintiff a flare, there was no testimony that the officer gave the plaintiff any safety instructions when he arrived at the scene. In fact, the officer admitted that he gave no such instructions. According to the officer’s own testimony, it was only when he was preparing to leave after he had placed the flares in the road, which took anywhere from two to five minutes, that he told the plaintiff to stand down the roadway in a safer position. As the officer and the plaintiff started to walk in that direction, the plaintiff’s disabled vehicle was struck.

With respect to the jury’s apportionment of liability between the City defendants and Legget, we note that this issue was not raised on appeal.

We do find, however, that the damages awarded for past and future lost earnings are excessive to the extent indicated.

Further, the City defendants correctly contend that the court had discretion to award interest on the judgment at a rate of less than 9% (see, Rodriguez v New York City Hous. Auth., 91 NY2d 76). Consequently, the matter is remitted for a determination of an appropriate interest rate.

The City defendants’ remaining contentions are without merit. Altman, J. P., Friedmann and Goldstein, JJ., concur.