Sontag v. Mulkerin

63 A.D.2d 699, 404 N.Y.S.2d 697, 1978 N.Y. App. Div. LEXIS 11607

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1978
• Status: Published

Opinion

In a negligence action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Queens County, entered June 22, 1977, which is in favor of defendants, upon a jury verdict. Judgment reversed, on the law, and new trial granted as to all parties and causes, with costs to abide the event. Plaintiffs’ seventh request to charge was: "Though the driver of a motor vehicle is authorized to proceed in the face of a green light, if he observed another car in the intersection or so near as to render it likely that a collision would occur unless he reduced speed or stopped, or if the circumstances and conditions were such that, in the exercise of ordinary prudence he ought to have made such an observation, he was not authorized to proceed blindly and wantonly without reference to the other car but was bound to use such care to avoid collision as an ordinarily prudent man would have used under the circumstances.” The court’s refusal to so charge constituted prejudicial error (see Shea v Judson, 283 NY 393, 397; Plantz v Greiner, 232 App Div .73, 75), particularly since this was a comparative negligence case. Furthermore, nowhere in its charge did the court allude to the possible liability of the defendant L. K. Comstock & Co., Inc. We are also of the opinion that the demand for admissions should have been complied with. In view of our determination, we do not deem it necessary to reach the other claims of error. Titone, J. P., Shapiro and Margett, JJ., concur; Rabin and Cohalan, JJ., dissent and vote to affirm the judgment.