Christopher G. Floreale handled a case that arose out of a two-vehicle motor vehicle accident that occurred on Sunday, December 30, 2006. At that time, the plaintiff was a front seat passenger in a vehicle being operated by the defendant and owned by a car dealer. The defendant was using the vehicle as a loaner because she had dropped her personal vehicle at the dealer the day before for service. The vehicle the plaintiff and defendant were in came into contact with the vehicle operated by another woman who was not sued in the action. Elm Street is a one-way street with three lanes of travel. It was clear the co-defendant made a left-hand turn into the woman from the center lane thus causing the accident.
The plaintiff claimed the defendant was negligent in the operation of the vehicle she was driving and that the dealer was responsible for her acts because she was operating their vehicle with their permission and consent at the time of the accident. The plaintiff also claimed that, as a result of the accident, he sustained a partial tear of the left rotator cuff and an osteochondral defect of the right ankle requiring surgery. The plaintiff had also been on the operating table for a left rotator cuff repair but the surgery needed to be cancelled due to unrelated heart issues on the day of surgery. The plaintiff was not working on the date of loss due to an unrelated heart condition. There was no claim made for past or future medical expenses.
Prior to summations, the Court granted a directed verdict against co-defendant thereby resulting in a vicarious negligence finding against the dealer under VTL §388. The jury was given a special verdict sheet to determine whether or not, as a result of the subject accident, the plaintiff sustained a fracture of the cartilage to his right ankle; a significant limitation of use of a bodily function or system; or a permanent consequential limitation of use of bodily function or system. The jury answered “no” to each of those questions by a vote of 5 to 6. The verdict was rendered on January 10, 2011 and jury deliberations were approximately 45 minutes. The plaintiff recently served a post trial motion to set the verdict aside. It is unknown whether or not plaintiff’s counsel intends to also appeal the judgment entered in this matter.