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Cecil Goddard v. Badar A. Balgahoom and Khadafi B. Balgahoom

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


February 24, 2011

CECIL GODDARD, APPELLANT,
v.
BADAR A. BALGAHOOM AND KHADAFI B. BALGAHOOM, RESPONDENTS, -AND-
MICHAEL EKEIJEH AND JAMES EKE-IJEH,
APPELLANTS.

Appeals from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered June 11, 2009.

Goddard v Balgahoom

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 24, 2011

PRESENT: PESCE, P.J., GOLIA and STEINHARDT, JJ

The order, insofar as appealed from, granted the branches of a motion by defendants Badar A. Balgahoom and Khadafi B. Balgahoom seeking to set aside a jury verdict in favor of plaintiff against them on the issue of liability and to dismiss the complaint as against them, and sua sponte directed that a judgment be entered in favor of plaintiff against defendants Michael Ekeijeh and James Eke-ijeh on the issue of liability.

ORDERED, on the court's own motion, that the notice of appeal of defendants Michael Ekeijeh and James Eke-ijeh from so much of the order as sua sponte directed that a judgment be entered in favor of plaintiff against them on the issue of liability is treated as an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CCA 1702 [c]); and it is further,

ORDERED that the order, insofar as appealed from, is reversed, without costs, the branches of the motion by defendants Badar A. Balgahoom and Khadafi B. Balgahoom seeking to set aside the jury verdict in favor of plaintiff against them on the issue of liability and to dismiss the complaint as against them are denied, so much of the order as sua sponte directed that a judgment be entered in favor of plaintiff against defendants Michael Ekeijeh and James Eke-ijeh on the issue of liability is vacated, and the matter is remitted to the Civil Court for a trial as against defendants Badar A. Balgahoom and Khadafi B. Balgahoom on the issue of damages.

Plaintiff was allegedly injured when a motor vehicle owned by defendant Badar A. Balgahoom and operated by defendant Khadafi B. Balgahoom (collectively "defendants Balgahoom") collided with a vehicle owned by defendant Michael Ekeijeh and operated by defendant James Eke-ijeh (collectively "defendants Ekeijeh"), in which plaintiff was a passenger. The collision occurred at the intersection of Dorchester Road and East 21st Street in Brooklyn. The traffic on East 21st Street, where Eke-ijeh was driving, was controlled by a stop sign. At a jury trial on the issue of liability, Eke-ijeh testified that he had stopped his vehicle at the stop sign and had looked both ways before proceeding into the intersection. He did not see the Balgahoom vehicle before the impact. The Balgahoom vehicle, which was operating with the right-of-way on Dorchester Road, collided with the right rear passenger side of Eke-ijeh's vehicle in the intersection. Plaintiff testified that he had briefly observed Balgahoom's vehicle from "six to ten - six to eight feet" away, traveling at a "high rate of speed" immediately prior to the collision. Defendant Khadafi B. Balgahoom testified that he had hit "the middle of the other car," pushing it two full car lengths out of the intersection.

The jury returned a verdict finding that Khadafi B. Balgahoom was negligent and that his negligence was a substantial factor in causing the accident. The jury further found that Eke-ijeh was negligent, but that his negligence was not a substantial factor in causing the accident. Defendants Balgahoom subsequently moved to, among other things, set aside the jury's verdict on the issue of liability, pursuant to CPLR 4404 (a), and to direct that a judgment be entered dismissing the complaint as against them. The Civil Court granted so much of the motion as sought the aforementioned relief, and sua sponte directed that a judgment be entered in favor of plaintiff against defendants Ekeijeh on the issue of liability.

In our view, the Civil Court erred in setting aside the jury verdict. The verdict could properly have been reached upon a fair interpretation of the evidence (see Cartica v Kieltyka, 55 AD3d 523, 524 [2008]; Lallemand v Cook, 23 AD3d 533, 534 [2005]) which included testimony that defendant Khadafi B. Balgahoom had been traveling at a "high rate of speed," and collided with the right rear passenger side of the Ekeijeh vehicle with such momentum as to be able to push the Ekeijeh vehicle two full car lengths out of the intersection. The foregoing testimony created the inference that the Ekeijeh vehicle was substantially through the intersection when the collision occurred and that Khadafi B. Balgahoom negligently operated his vehicle at an excessive rate of speed immediately prior to the accident.

Accordingly, the order, insofar as appealed from, is reversed, the branches of the motion by defendants Badar A. Balgahoom and Khadafi B. Balgahoom seeking to set aside the jury verdict in favor of plaintiff against them on the issue of liability and to dismiss the complaint as against them are denied, so much of the order as sua sponte directed that a judgment be entered against defendants Michael Ekeijeh and James Eke-ijeh on the issue of liability is vacated and the matter is remitted to the Civil Court for a trial as against defendants Badar A. Balgahoom and Khadafi B. Balgahoom on the issue of damages.

Pesce, P.J., Golia and Steinhardt, JJ., concur. Decision

Date:February 24, 2011

20110224

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