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Cibiel Suero, Appellant v. Rocco Lospinuso and Michael Lospinuso

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


May 6, 2013

CIBIEL SUERO, APPELLANT, --
v.
ROCCO LOSPINUSO AND MICHAEL LOSPINUSO, RESPONDENTS.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered January 5, 2010.

Suero v Lospinuso

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 6, 2013

PRESENT: ALIOTTA, J.P., PESCE and RIOS, JJ

The judgment, upon a jury verdict in favor of defendants on the issue of liability, dismissed the complaint. The appeal was erroneously noticed to the Appellate Division, Second Department, which transferred the appeal to this court (2013 NY Slip Op 66949[U]; see NY Const, art VI, § 5 [b]).

ORDERED that the judgment is affirmed, without costs.

Plaintiff commenced this action to recover damages for injuries sustained as a result of an accident which occurred on September 21, 2005 at the intersection of Freedom Drive and Park Lane South in Queens. The accident occurred when plaintiff, who was riding his skateboard southbound on Freedom Drive, was struck by defendants' vehicle, which was traveling westbound on Park Lane South. The intersection was controlled by a traffic signal. At a jury trial on the issue of liability, plaintiff testified that the light had been green as he had approached the intersection. Defendant Michael Lospinuso testified that he had slowed down as he approached the intersection because the light was red, but that the light changed to green when he was a few feet east of the crosswalk of the intersection. He said that his speed was about five to eight miles per hour when he heard a loud bang, which was the sound of plaintiff's impact with defendant's vehicle. Although he did not see the impact, when he heard the loud bang, he slammed on his brakes. On cross-examination, plaintiff's counsel attempted to impeach defendant's credibility by reading a portion of his deposition testimony, and asked him if he had testified that his vehicle had skidded 10 to 15 feet. Defendant responded that that was not his testimony. During plaintiff's counsel's closing statement, counsel stated that Lospinuso had testified that, upon impact, he had skidded 10 feet. Defense counsel objected that there was no such testimony in evidence. The Civil Court reminded the jury that what counsel states in closing argument is not evidence and that it was the jury's recollection of the evidence which controlled. The jury returned a verdict in favor of defendants. A judgment was subsequently entered dismissing the complaint, from which plaintiff appeals. Plaintiff's sole argument on appeal is that the Civil Court erred in the manner in which it responded to defense counsel's objection to the characterization of Lospinuso's deposition testimony during plaintiff's counsel's closing statement. We disagree.

The Civil Court's repeated instructions to the jury that summation remarks by the attorneys were not evidence, that the jury was to base its verdict only on the evidence presented at trial, and that it was the jury's recollection of the evidence which governed, were proper. As plaintiff has raised no other error on the part of the Civil Court in the conduct of the trial, we find no basis to reverse the judgment.

Accordingly, the judgment dismissing the complaint is affirmed.

Aliotta, J.P., Pesce and Rios, JJ., concur.

Decision Date: May 06, 2013

20130506

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