Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Applebee v. County of Cayuga

Supreme Court of New York, Fourth Department

February 8, 2013

STEPHEN APPLEBEE, PLAINTIFF-APPELLANT,
v.
COUNTY OF CAYUGA, DEFENDANT-RESPONDENT. COUNTY OF CAYUGA, THIRD-PARTY PLAINTIFF, VILLAGE OF PORT BYRON, THIRD-PARTY DEFENDANT-RESPONDENT. (APPEAL NO. 1.)

Appeal from a judgment of the Supreme Court, Cayuga County (Mark H. Fandrich, A.J.), entered February 9, 2011 in a personal injury action. The judgment dismissed plaintiff's complaint.

GREENE & REID, PLLC, SYRACUSE (EUGENE W. LANE OF COUNSEL), FOR PLAINTIFF-APPELLANT.

LYNCH LAW OFFICE, SYRACUSE, CONGDON, FLAHERTY, O'CALLAGHAN, REID, DONLON, TRAVIS & FISHLINGER, UNIONDALE (CHRISTINE GASSER OF COUNSEL), FOR DEFENDANT-RESPONDENT.

DAVIDSON & O'MARA, P.C., ELMIRA (THOMAS F. O'MARA OF COUNSEL), FOR THIRD-PARTY DEFENDANT-RESPONDENT.

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.

It is hereby ORDERED that said appeal is unanimously dismissed without costs.

Memorandum: Plaintiff commenced this action against defendant-third-party plaintiff, County of Cayuga (County), seeking damages for injuries that he sustained when the vehicle in which he was riding hit a bump in the road. According to plaintiff, the County had failed to maintain the road in an adequate condition. The County commenced a third-party action against the Village of Port Byron, and the case proceeded to trial. It is undisputed that the jury's answers to the interrogatories submitted under CPLR 4111 (c) were inconsistent both internally and with the general verdict in plaintiff's favor (see e.g. Vera v Bielomatik Corp., 199 A.D.2d 132, 133). Specifically, while the jury found that plaintiff's conduct constituted a superseding cause of his own injuries, it also found that the County was 45% at fault for those injuries, which is legally impossible (see Soto v New York City Tr. Auth., 6 N.Y.3d 487, 492). No party objected to the inconsistent verdict, however, and the jury was discharged.

One week later, the County obtained a ministerial judgment from the Cayuga County Clerk pursuant to CPLR 5016 (b) that dismissed the complaint, presumably upon the assumption that the jury's finding of superseding cause required a judgment in its favor. That is the judgment at issue in appeal No. 1. Plaintiff thereafter moved to vacate that judgment. By the order at issue in appeal No. 2, Supreme Court denied the motion and held that the jury's finding of superseding cause permitted a judgment in the County's favor. That order also provided that "the clerical entry of judgment herein by the Cayuga County Clerk is hereby approved, nunc pro tunc."

The procedure for addressing inconsistent interrogatory responses is spelled out in CPLR 4111 (c) (see Marine Midland Bank v Russo Produce Co., 50 N.Y.2d 31, 40; Midler v Crane, 67 A.D.3d 569, 579, revd on other grounds 14 N.Y.3d 877, rearg denied 15 N.Y.3d 821). When, as here, a jury's responses to interrogatories are inconsistent both with each other and with the general verdict, the court, under the plain terms of the statute, "only has the power to either ask the jury to further consider its answers and verdict[] or [to] order a new trial" (Mars Assoc. v New York City Educ. Constr. Fund, 126 A.D.2d 178, 190, lv dismissed 70 N.Y.2d 747; see Dubec v New York City Hous. Auth., 39 A.D.3d 410, 411; Vathy v Rupp Rental Corp., 43 A.D.2d 892, 893). In other words, no judgment may be rendered in favor of either party under these circumstances. We therefore conclude that the Clerk lacked authority to enter the judgment at issue in appeal No. 1 as a ministerial act pursuant to CPLR 5016 (b) (see Orix Credit Alliance v Grace Indus., 231 A.D.2d 502, 503 [ Orix I ]; 73 NY Jur 2d, Judgments § 73, n 3; see also Matter of National Equip. Corp. v Ruiz, 19 A.D.3d 5, 15-16). The Clerk's judgment was thus a nullity from which no appeal lies (see Wood v Dolloff, 52 A.D.3d 1190, 1190; Pavone v Walters, 214 A.D.2d 1052, 1052; see generally Pauk v Pauk, 234 A.D.2d 280, 281; Orix Credit Alliance v Grace Indus., 231 A.D.2d 503, 504). We note that the court's later approval, in the order at issue in appeal No. 2, of the entry of the Clerk's judgment on a nunc pro tunc basis "was ineffective as it added nothing to correct [its] deficiencies" (Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v City of New York, 12 A.D.3d 247, 247; see Matter of ZMK Realty Co. v Bokhari, 267 A.D.2d 391, 392).

In appeal No. 2, we conclude that the court erred in denying plaintiff's motion to vacate the Clerk's judgment. Because, as noted, the Clerk lacked the authority to enter that judgment in the County's favor as a ministerial act pursuant to CPLR 5016 (b), it was void and should have been vacated by the court on plaintiff's motion (see Orix I, 231 A.D.2d at 503). Moreover, because CPLR 4111 (c) forbids the entry of any judgment under these circumstances, the court erred in attempting to cure the Clerk's defective ministerial judgment by itself "approv[ing]" of its entry (see Mars Assoc., 126 A.D.2d at 187-190; Vathy, 43 A.D.2d at 892-893; cf. Marine Midland Bank, 50 N.Y.2d at 40-41; National Equip. Corp., 19 A.D.3d at 15-16), and we conclude that the proper remedy is a new trial. We agree with the First Department that, "once a jury has been disbanded, it is too late to require that its [interrogatory] answers be reconsidered, and for that reason a new trial is generally in order" (Vera, 199 A.D.2d at 134). Moreover, "the disbanding of the jury without... objection... obliterate[s] neither [the] right to seek a new trial[] nor the court's capacity to grant it[] where[, as here, ] the interest of justice manifestly requires it" (id.; but see Preston v Young, 239 A.D.2d 729, 732). In any event, "where, as is the case here, the record is confusing and incomplete... this [C]ourt can in the interest of justice [grant] a new trial" (Weckstein v Breitbart, 111 A.D.2d 6, 8; see CPLR 5522 [a]).

Finally, because we are granting a new trial, we note that the court erred in instructing the jury on the doctrine of superseding cause. Such an instruction is only warranted when, insofar as relevant here, the plaintiff's conduct was so extraordinary and unforeseeable that it "breaks the chain of causation" and thereby relieves the defendant of liability for any resulting injuries (Lynch v Bay Ridge Obstetrical & Gynecological Assoc., 72 N.Y.2d 632, 637; see Fishman v Beach, 237 A.D.2d 705, 706). Here, we conclude that plaintiff's allegedly negligent conduct ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.