ARMS v. HALSEY

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Supreme Court, Appellate Division, Fourth Department, New York.

Christine ARMS, Plaintiff-Respondent, v. Carleen E. HALSEY and Richard Halsey, Defendants-Appellants.

Decided: September 28, 2007

PRESENT:  HURLBUTT, J.P., MARTOCHE, SMITH, FAHEY, AND PINE, JJ. Law Office of Keith D. Miller, Liverpool (Keith D. Miller of Counsel), for Defendants-Appellants. McDermott & Britt, P.C., Syracuse (John R. McDermott, Jr., of Counsel), for Plaintiff-Respondent.

Plaintiff commenced this action seeking damages for injuries she sustained when a vehicle driven by Carleen E. Halsey (defendant) collided with the vehicle driven by plaintiff.   Defendants appeal from an order granting plaintiff's posttrial motion seeking to set aside the jury verdict in favor of defendants and for judgment as a matter of law on liability with respect to defendant.   We affirm.   The record establishes that the accident occurred when defendant's vehicle skidded out of control on a slushy and slippery highway surface, crossed over into the lane for oncoming traffic and collided with plaintiff's vehicle.   Supreme Court instructed the jury, without objection, that “[i]f you find that the Defendant violated [Vehicle and Traffic Law § 1120(a) ], such a violation constitutes negligence.   You cannot disregard a violation of the statute and substitute some standard of care other than that set forth in the statute” (see PJI 2:26 [2007] ).

 In opposition to plaintiff's posttrial motion, defendants correctly asserted that it is only an unexcused violation of the Vehicle and Traffic Law that compels a finding of negligence, and that such a violation “ ‘may be excused if [the driver] exercised reasonable care in an effort to comply’ ” with the statute (Arricale v. Leo, 295 A.D.2d 920, 920, 744 N.Y.S.2d 109, quoting Espinal v. Sureau, 262 A.D.2d 523, 524, 691 N.Y.S.2d 335;  see Sanly v. Nowak, 28 A.D.3d 1113, 813 N.Y.S.2d 321;  Schager v. Lino Bordi, Inc., 2 A.D.3d 828, 769 N.Y.S.2d 385;  see also Cook v. Garrant, 27 A.D.3d 984, 986, 811 N.Y.S.2d 801;  Simmons v. Weegar, 292 A.D.2d 828, 739 N.Y.S.2d 801;  PJI 2:84 [2007] ).   Nevertheless, the record establishes that defendants failed to object to the court's instruction that the jury must find negligence if Vehicle and Traffic Law § 1120(a) was violated.   That instruction “became the law applicable to the determination of the rights of the parties in this litigation ․ and thus established the legal standard by which the sufficiency of the evidence to support the verdict must be judged” (Harris v. Armstrong, 64 N.Y.2d 700, 702, 485 N.Y.S.2d 523, 474 N.E.2d 1191;  see Wittman v. Marotta, 272 A.D.2d 876, 707 N.Y.S.2d 916;  Stepanian v. Rozanski, 195 A.D.2d 973, 600 N.Y.S.2d 599, lv. dismissed 82 N.Y.2d 802, 604 N.Y.S.2d 559, 624 N.E.2d 697).

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

MEMORANDUM: