Hollamon v. Vinson

Gorski, J.E, and Green, J. (dissenting).

We respectfully dissent. In our view Supreme Court erred in denying plaintiffs motion to set aside the verdict as inconsistent and against the weight of the evidence and in failing to grant a new trial on the issue of proximate cause. Based upon the evidence presented at trial, the jury’s “finding of negligence cannot be reconciled with the jury’s finding of no proximate cause” (Murphy v Holzinger, 6 AD3d 1072, 1072-1073 [2004]). Evidence that plaintiff may have been interacting with people on the street and interrupting the smooth flow of traffic, “while pertinent to the issue of contributory negligence, does not equate with a lack of proximate cause” with respect to the negligence of defendant Damon D. Vinson (Bucich v City of New York, 111 AD2d 646, 648 [1985]; see Mazurek v Home Depot U.S.A., 303 AD2d 960, 961 [2003]). Further, the majority’s conclusion that the jury may have found that the sole proximate cause of the accident was plaintiffs conduct in stopping suddenly without signaling is based upon speculation. We therefore would reverse the judgment insofar as appealed from, grant plaintiff’s motion, set aside the verdict in part, reinstate the amended complaint and grant a new trial on the issue of proximate cause only. Present—Gorski, J.E, Fahey, Eeradotto, Green and Fine, JJ.