Maldonado v. Sunshine

156 A.D.2d 341, 548 N.Y.S.2d 294, 1989 N.Y. App. Div. LEXIS 15355

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 4, 1989
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Saladino, J.), dated April 28, 1988, which is in favor of the defendants and against him, upon a jury verdict.

Ordered that the judgment is affirmed, with costs.

The action arose out of an incident on July 25, 1985, when a vehicle owned by the defendant Gabriel Sunshine and operated by the defendant Alison Sunshine struck the plaintiff Carlos Enrique Maldonado as he was crossing Glen Cove Road, a four-lane roadway in Nassau County.

According to the plaintiff, he had crossed half the roadway and was waiting on the double yellow line for a clearing in the traffic so that he could cross the second half of the roadway when he was struck by the defendants’ car. According to the defendant driver, she was driving in the left northbound lane when she saw the plaintiff running across the street. She applied the brakes but could not avoid colliding with the plaintiff as he ran in front of her car.

The jury apparently determined that the defendant driver’s version was credible, that the defendant driver was faced with an emergency situation, and that she acted as a reasonably prudent person would act under the same emergency circumstances and was therefore not negligent. Since the verdict is one that could have been reached by a fair interpretation of the evidence, it should not be disturbed (see, Nicastro v Park, 113 AD2d 129, 134).

In addition, the plaintiff’s contention that the court improperly charged the jury as to the emergency doctrine with regard to the defendant driver is unpreserved for appellate review and we decline to reach it in the exercise of our discretionary power to review it in the interest of justice. Mangano, J. P., Bracken, Kunzeman and Spatt, JJ., concur.