Pitt v. Rosenblatt

Opinion

Pitt v Rosenblatt

2026 NY Slip Op 05200

September 2, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Christopher Pitt, appellant,

v

Lois M. Rosenblatt, etc., et al., respondents.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on September 2, 2026

2024-12518, (Index No. 18680/12)

Hector D. Lasalle, P.J.

Linda Christopher

Carl J. Landicino

James P. McCormack, JJ.

The Flomenhaft Law Firm, PLLC (Horn Appellate Group, Brooklyn, NY [Scott T. Horn and Christen Giannaros], of counsel), for appellant.

Lewis Brisbois Bisgaard & Smith LLP (Kahana & Feld LLP, New York, NY [Eric S. Bernhardt and Serena Mott], of counsel), for respondents.

[*1]

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Heela D. Capell, J.), dated October 14, 2024. The order denied the plaintiff's motion pursuant to CPLR 4404(a) to set aside a jury verdict in favor of the defendants on the issue of liability and for judgment as a matter of law or, in the alternative, to set aside the verdict as against the weight of the evidence or in the interest of justice and for a new trial.

ORDERED that the order is modified, on the facts, by deleting the provision thereof denying that branch of the plaintiff's motion which was pursuant to CPLR 4404(a) to set aside the jury verdict in favor of the defendants on the issue of liability as against the weight of the evidence and for a new trial, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, with costs to the plaintiff.

The plaintiff was injured when a truck operated by Adam Mroz (hereinafter the decedent) struck the rear of the plaintiff's stopped car. The plaintiff commenced this action to recover damages for personal injuries against the decedent and the owner of the truck. Subsequently, the administrator of the decedent's estate was substituted for the decedent as a defendant.

At a trial on the issue of liability, the only nonnegligent explanation for the accident provided by the defendants was that the decedent sustained a seizure just prior to the accident. Following the trial, the jury answered "No" when asked whether the decedent "experience[d] a sudden, unforeseen medical emergency such as a seizure prior to the accident of January 30, 2012, and was his operation of the vehicle reasonable under the circumstances," but then also responded "No" when asked whether the decedent was "negligent in the operation of the vehicle." After the jury was discharged, the plaintiff moved pursuant to CPLR 4404(a) to set aside the jury verdict and for judgment as a matter of law or, in the alternative, to set aside the verdict as against the weight of the evidence or in the interest of justice and for a new trial. The Supreme Court denied the plaintiff's motion. The plaintiff appeals.

Pursuant to CPLR 4404(a), "the court may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law [*2]or it may order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence, in the interest of justice or where the jury cannot agree after being kept together for as long as is deemed reasonable by the court."

"'A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision in order to rebut the inference of negligence'" (Annarumma v Tola, 244 AD3d 1035, 1036, quoting Martin v PTM Mgt. Corp., 214 AD3d 782, 782-783). However, "'[t]he operator of a vehicle who becomes involved in an accident as the result of suffering a sudden medical emergency will not be chargeable with negligence as long as the emergency was unforeseen'" (Liddell v Morrison, 204 AD3d 987, 988, quoting Serpas v Bell, 117 AD3d 712, 713).

The Supreme Court properly denied that branch of the plaintiff's motion which was for judgment as a matter of law in his favor on the issue of liability. Considering the facts in the light most favorable to the defendants, and affording them the benefit of every favorable inference, there was a valid line of reasoning and permissible inferences that could possibly lead rational persons to the conclusion that the defendants are not liable because the accident resulted from a sudden and unforeseeable medical emergency (see Frances G. v Vincent G., 71 NY2d 1001, 1002; Krohn v Schultz Ford Lincoln, Inc., 246 AD3d 90, 96).

However, the Supreme Court should have granted that branch of the plaintiff's motion which was pursuant to CPLR 4404(a) to set aside the verdict as against the weight of the evidence and for a new trial. "Where, as here, the jury verdict 'is irreconcilably inconsistent, that verdict must be set aside as contrary to the weight of the evidence'" (Contona v Godas, 244 AD3d 920, 921, quoting Middleton v New York City Tr. Auth., 199 AD3d 998, 999). Although the plaintiff did not object to the jury verdict as inconsistent prior to the discharge of the jury, thus failing to preserve an issue of law (see Barry v Manglass, 55 NY2d 803, 806), "'there is no preservation requirement for weight of the evidence review'" (Cuji v 225 Fourth, LLC, 243 AD3d 885, 886, quoting Evans v New York City Tr. Auth., 179 AD3d 105, 111).

Here, since the only nonnegligent explanation for the accident provided by the defendants was an alleged sudden medical emergency, it was irreconcilably inconsistent for the jury to answer "No" when asked whether the decedent "experience[d] a sudden, unforeseen medical emergency such as a seizure prior to the accident of January 30, 2012, and was his operation of the vehicle reasonable under the circumstances," while also responding "No" when asked whether the decedent was "negligent in the operation of the vehicle." Accordingly, there must be a new trial on the issue of liability.

The plaintiff's remaining contentions are without merit.

LASALLE, P.J., CHRISTOPHER, LANDICINO and MCCORMACK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court