Opinion
Filed June 18, 1999
Appeal from the Judgment of Supreme Court, Erie County, Cosgrove, J. — Negligence.
PRESENT: DENMAN, P. J., HAYES, WISNER, HURLBUTT AND CALLAHAN, JJ.
Judgment reversed on the law without costs and new trial granted on liability only. Memorandum: Supreme Court erred in granting plaintiff's motion for judgment on liability pursuant to CPLR 4401. Plaintiff established a prima facie case by her testimony that defendant's vehicle struck plaintiff's stopped vehicle from the rear ( see, Suitor v. Boivin, 219 A.D.2d 799, 800; Pincus v. Cohen, 198 A.D.2d 405; Cohen v. Terranella, 112 A.D.2d 264). Affording defendant the benefit of every favorable inference from the evidence ( cf., Pulitano v. Suffolk Manor Caterers, 245 A.D.2d 279, 280), however, we conclude that the jury might reasonably have found that the collision between defendant's and plaintiff's vehicles resulted not from defendant's negligence but from that of plaintiff in colliding with the rear of the vehicle ahead of hers ( see, Zwilling v. Harrison, 269 N.Y. 461; Hurley v. Izzo, 248 A.D.2d 674, 675-676; DeVito v. Silvernail, 239 A.D.2d 824; Suitor v. Boivin, supra, at 800)
The amount of the verdict in the separate trial on damages is not challenged on appeal. We therefore reverse the judgment and grant a new trial on liability only.
All concur except Callahan, J., who dissents and votes to affirm in the following Memorandum: I disagree with the majority's conclusion "that the jury might reasonably have found that the rear-end collision between defendant's and plaintiff's vehicles resulted not from defendant's negligence but from that of plaintiff in colliding with the rear of the vehicle ahead of hers". Neither defendant's testimony nor the testimony of the nonparty witness Sherry Moore, the owner of the vehicle in traffic ahead of plaintiff, gives rise to such a conclusion. Moore testified that plaintiff's vehicle struck hers and that she heard only one collision. Plaintiff testified that, when her vehicle was struck by defendant's, her vehicle was driven into Moore's vehicle. On cross-examination Moore conceded that plaintiff's vehicle could have been struck from behind and driven into her vehicle. She also acknowledged that, after the accident and while at the scene, she learned how the accident occurred. Viewing the evidence in the light most favorable to defendant, I conclude that the trial court properly found that by no rational process could the jury have found in favor of defendant. Indeed, the court properly stated, "I think to allow the jury to deal with that issue is in the range of speculation". The court observed the witnesses and in my view properly directed a verdict at the close of the proof. I therefore vote to affirm. Defendant does not challenge the damages awarded by the jury.