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

Manaika MORGAN-CABAN, Plaintiff-Respondent, v. Robert P. PACINI, Defendant-Appellant.

Decided: June 14, 2002

Present:  GREEN, J.P., HAYES, HURLBUTT, BURNS, and GORSKI, JJ. Law Offices of Craig P. Niederpruem, Utica (Theresa Marie Zehe of Counsel), for Defendant-Appellant. Frank Policelli, Utica, for Plaintiff-Respondent.

Plaintiff was traveling on Route 5 in the Town of New Hartford when her vehicle hit a patch of ice, spun sideways, hit a guardrail, and eventually came to rest, sideways, in the passing lane.   Defendant was unable to stop his vehicle, and his vehicle collided with the driver's side of plaintiff's vehicle.   Following a trial, the jury returned a verdict in favor of defendant, finding that he was negligent but that his negligence was not a substantial factor in bringing about the accident.   Supreme Court properly granted plaintiff's motion to set aside the verdict as against the weight of the evidence and ordered a new trial pursuant to CPLR 4404(a).   As a general rule, “a finding of negligence is not inconsistent with a finding of no proximate cause” (Pimpinella v. McSwegan, 213 A.D.2d 232, 233, 623 N.Y.S.2d 863).   Here, however, we agree with the court that the issues of negligence and proximate cause are so “inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause” (Rubin v. Pecoraro, 141 A.D.2d 525, 527, 529 N.Y.S.2d 142;  see Stanton v. Gasport View Dairy Farm, 244 A.D.2d 893, 894, 665 N.Y.S.2d 234;  cf.  Martonick v. Pudiak, 285 A.D.2d 935, 936, 727 N.Y.S.2d 829).   Thus, the jury could not have reached its verdict on any fair interpretation of the evidence (see Stanton, 244 A.D.2d at 893-894, 665 N.Y.S.2d 234;  Nicastro v. Park, 113 A.D.2d 129, 134, 495 N.Y.S.2d 184).

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