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SEYMOUR GILLMAN v. LIBERTY AIRPORT AUTHORITY ET AL. (07/08/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT 1969.NY.42520 <http://www.versuslaw.com>; 302 N.Y.S.2d 203; 32 A.D.2d 296 July 8, 1969 SEYMOUR GILLMAN, APPELLANT,v.LIBERTY AIRPORT AUTHORITY ET AL., RESPONDENTS Appeals (1) from a judgment of the Supreme Court, entered March 11, 1966, in Sullivan County, upon a verdict of no cause of action rendered at a Trial Term (William Deckelman, J.) in favor of defendant Liberty Airport Authority; (2) from a judgment of said court entered January 26, 1966 in favor of defendant Hodge upon dismissal of the complaint as to him, upon motion made at the close of all the evidence; (3) from a judgment of said court entered April 27, 1966 in favor of defendant Murphy upon dismissal of the complaint as to him, upon motion made at the close of all evidence; (4) from an order of said court, entered March 11, 1966, which denied plaintiff's motion to set aside the verdict in favor of defendant Authority; and (5) from an order of said court, entered March 15, 1966, which denied plaintiff's motion to vacate the judgment entered in favor of defendant Hodge. Louis B. Scheinman for appellant. Wiess & Costa (Lawrence E. Lagarenne of counsel), for Liberty Airport Authority, respondent. George F. Roesch, III, for Russell Hodge, respondent. Rosen & Rosen for Edward Murphy, respondent. Gibson, P. J. Staley, Jr., and Greenblott, JJ., concur with Gibson, P. J.; Herlihy and Reynolds, JJ., concur in separate memorandums. Author: Gibson


Appeals (1) from a judgment of the Supreme Court, entered March 11, 1966, in Sullivan County, upon a verdict of no cause of action rendered at a Trial Term (William Deckelman, J.) in favor of defendant Liberty Airport Authority; (2) from a judgment of said court entered January 26, 1966 in favor of defendant Hodge upon dismissal of the complaint as to him, upon motion made at the close of all the evidence; (3) from a judgment of said court entered April 27, 1966 in favor of defendant Murphy upon dismissal of the complaint as to him, upon motion made at the close of all evidence; (4) from an order of said court, entered March 11, 1966, which denied plaintiff's motion to set aside the verdict in favor of defendant Authority; and (5) from an order of said court, entered March 15, 1966, which denied plaintiff's motion to vacate the judgment entered in favor of defendant Hodge.

Gibson, P. J. Staley, Jr., and Greenblott, JJ., concur with Gibson, P. J.; Herlihy and Reynolds, JJ., concur in separate memorandums.

Author: Gibson

 The plaintiff in a personal injury negligence action appeals from a judgment in favor of defendant Liberty Airport Authority entered upon a verdict of no cause of action; from separate judgments entered in favor of defendants Hodge and Murphy upon dismissal of the complaint as to them, upon motions made at the close of all the evidence; from an order which denied plaintiff's motions to set aside the verdict in favor of the Authority; and from an order which denied plaintiff's motion to vacate the judgment entered in favor of defendant Hodge.

Plaintiff was injured when an airplane owned by Knief and Soules and piloted by Dennis, and in which plaintiff was a guest-passenger, crashed, on take-off, into planes owned by defendants Hodge and Murphy and parked adjacent to the runway. Plaintiff did not sue the owners or the pilot of the plane in which he was riding. The theory of the action is that the Airport Authority was negligent in that, at a time when a fairly gusty wind of from 15 to 20 miles per hour was blowing from the east, across the north-south runway, it directed that the Hodge and Murphy planes be parked on the west or downwind side of the runway and in close proximity thereto -- from 5 to 20 feet, according to the testimony; and that defendants Hodge and Murphy were negligent in following the Airport Authority's instructions.

On take-off, with Dennis at the controls, the plane gathered speed, lifted slightly off the ground twice and then swerved left, or westerly, into the parked Hodge and Murphy planes. The pilot, testifying for the plaintiff, attributed the westward movement to a sudden gust of wind; and plaintiff's two expert witnesses considered that the planes were parked too close to the runway and, indeed, that, for reasons that were stated, a hazard was created by parking aircraft within 200 feet of the runway, particularly in the circumstances then existing. The thrust of the defense was that the plane had not attained flying speed when the take-off was attempted; and there was testimony that the plane proceeded at all times in a straight line, this contradicting the testimony that a cross gust forced it to the left. It may fairly be said that, whether or not the pilot Dennis was negligent, the evidence would have supported a finding by the jury of negligence on the part of the Authority contributing to cause the accident; and thus it becomes necessary to inquire whether error in the course of the trial affected the result.

The companion actions by Dennis, Knief and Soules (the pilot and owners) against the Authority were submitted to the jury with the action now before us. After the jurors had deliberated for a time they returned and submitted to the court the following question: "Is it possible to find the Liberty Airport negligent in Action No. 1 [Gillman] and no cause for action in Actions 2 and 3 [Dennis, Knief and Soules]?" The Trial Judge responded, initiating a colloquy as follows:

"Under the law, Ladies and Gentleman, I am not permitted to answer that question yes or no. You are the triers of the fact, and you may find such verdict as you feel is warranted by the evidence consistent with my charge. Does that answer your question now?

"The Forelady: No.

"The Court: All right.

"The Forelady: Well, maybe I'm out of order, but I think Mr. Gillman should be suing somebody else.

"The Court: Well, see, you have nothing to do with that. That's something that is not in the evidence in this case. We can't determine that here because there's been nobody else sued.

"The Forelady: Well, then, it's hard to do Action No. 1. "The Court: Does my answer satisfy everybody?

"(The Jury indicate affirmatively.)

"The Court: All right; ...


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