MATHEWSON v. BENDER

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

Park MATHEWSON, appellant, v. Stephen BENDER, et al., respondents.

Decided: March 22, 1999

LAWRENCE J. BRACKEN, J.P., THOMAS R. SULLIVAN, MYRIAM J. ALTMAN and LEO F. McGINITY, JJ. Elman & Weiss, P.C., New York, N.Y. (Matthew J. Weiss of counsel), for appellant. Isserlis & Sullivan, Bethpage, N.Y. (Rivkin, Radler & Kremer [Evan H. Krinick and Cheryl F. Korman] of counsel), for respondent Stephen A. Eastwood.

In a negligence action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Palmieri, J.), dated December 30, 1997, which, upon a jury verdict on the issue of liability only, finding that the defendants were not at fault in the happening of the accident, is in favor of the defendants and against him, dismissing the complaint.

ORDERED that the judgment is reversed, on the facts, the complaint is reinstated, and a new trial is granted, with costs to abide the event.

The plaintiff was a passenger in an automobile owned and operated by the defendant Stephen A. Eastwood.   Eastwood was attempting to make a left turn from the left-turn lane of Northern Boulevard, across two eastbound lanes onto Douglaston Parkway in Queens.   As he waited for an opportunity to turn, the traffic light turned either yellow or red.   As he attempted to turn left, Eastwood observed the defendant Stephen Bender maneuver his automobile around an automobile which was stopping for the eastbound light.   As Bender entered the intersection, the front of Bender's vehicle collided with the front and passenger side of Eastwood's vehicle, injuring the plaintiff.

 On these facts the jury could not have entered a verdict finding no fault or liability on the part of Eastwood, on any fair interpretation of the evidence (see, Dellavecchia v. Zorros, 231 A.D.2d 549, 647 N.Y.S.2d 291;  Mohamed v. Frische, 223 A.D.2d 628, 636 N.Y.S.2d 859).   The proof established that, at a minimum, Eastwood violated Vehicle and Traffic Law § 1141 by attempting to make a left turn into the intersection without yielding the right-of-way to the defendant Stephen Bender.   Such a violation constitutes negligence which cannot be disregarded by the jury (see, Smalley v. McCarthy, 254 A.D.2d 478, 679 N.Y.S.2d 406;  Hyppolite v. Guerrier, 232 A.D.2d 456, 648 N.Y.S.2d 166;  Milka v. Hernandez, 187 A.D.2d 1031, 590 N.Y.S.2d 342;  Weiser v. Dalbo, 184 A.D.2d 935, 585 N.Y.S.2d 124).

 With regard to the defendant Stephen Bender, the verdict also could not have been based on any fair interpretation of the evidence (see, Nicastro v. Park, 113 A.D.2d 129, 134, 495 N.Y.S.2d 184).   Furthermore, the court erred in failing to issue a missing witness charge regarding Bender's wife, who was a passenger in his automobile but who was not called to testify (see, People v. Gonzalez, 68 N.Y.2d 424, 509 N.Y.S.2d 796, 502 N.E.2d 583;  Jasmin v. Raju, 231 A.D.2d 605, 648 N.Y.S.2d 39).   Since the verdict was against the weight of the credible evidence, the judgment in favor of the defendants must be reversed, and a new trial is granted.

The plaintiff's remaining contention is without merit.

MEMORANDUM BY THE COURT.

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