KOZIOL v. Jessica Koziol, Defendant-Respondent. (2006)

Plaintiff commenced this action to recover damages for injuries she sustained when the vehicle in which she was a passenger collided with a truck and trailer operated by defendant Thane C. Wright (Wright) and owned by defendant Tammy J. Wright (collectively, defendants).   Plaintiff's daughter, defendant Jessica Koziol (Koziol), was driving the vehicle in which plaintiff was a passenger.   At the time of the accident, Koziol was attempting to pass Wright's truck, but Wright was about to make a left-hand turn.   The accident occurred when Koziol swerved to avoid Wright's truck and trailer and struck a utility pole.   It is undisputed that the trailer attached to the truck had no operational directional signals or taillights.   Wright testified at trial, however, that he signaled the turn by using a hand signal and by activating the truck's directional signals.   Following a bifurcated trial on the issues of negligence and proximate cause, the jury found that Wright was 75% at fault and that Koziol was 25% at fault.

 Contrary to defendants' contention, we conclude that Supreme Court's “charge as a whole adequately conveyed the proper legal principles” (Schmidt v. Buffalo Gen. Hosp., 278 A.D.2d 827, 828, 718 N.Y.S.2d 514, lv. denied 96 N.Y.2d 710, 726 N.Y.S.2d 373, 750 N.E.2d 75;  see Phillips v. United Artists Communications, 201 A.D.2d 634, 635, 607 N.Y.S.2d 976).   The court properly determined that Vehicle and Traffic Law § 375(18) and § 1164 (a) did not apply to this case and properly excluded an irrelevant reference to motorcycles when instructing the jury with respect to Vehicle and Traffic Law § 376(1)(a).   We reject the further contention of defendants that the court erred in refusing to charge the jury that, if it found that defendants violated the Vehicle and Traffic Law and that such violation was a proximate cause of the accident, then such a violation constitutes negligence.  “[I]t is well settled that ‘a defendant's unexcused violation of the Vehicle and Traffic Law constitutes negligence per se’ ” (Devoe v. Kaplan, 278 A.D.2d 734, 735, 717 N.Y.S.2d 767, quoting Holleman v. Miner, 267 A.D.2d 867, 868-869, 699 N.Y.S.2d 840;  see Hellenbrecht v. Radeker, 309 A.D.2d 834, 835, 766 N.Y.S.2d 81), and it is equally well settled that negligence and proximate cause are separate elements of liability (see Sheehan v. City of New York, 40 N.Y.2d 496, 501, 387 N.Y.S.2d 92, 354 N.E.2d 832;  Swauger v. White, 1 A.D.3d 918, 920, 767 N.Y.S.2d 188;  see also 1A NY PJI3d 205 [2006] ).

Finally, we conclude that the challenged comments by plaintiff's attorney during his summation were fair comment on the evidence and were made in direct response to defendants' theory and the summation by defendants' attorney (see Dailey v. Keith, 306 A.D.2d 815, 816, 760 N.Y.S.2d 715, affd. 1 N.Y.3d 586, 774 N.Y.S.2d 105, 806 N.E.2d 130;  Freeman v. Kirkland, 184 A.D.2d 331, 332, 584 N.Y.S.2d 828).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: