Gaile v. Cillo

Judgment, Supreme Court, New York County (Edith Miller, J.), entered December 22,1988, upon a jury verdict in favor of the defendant and upon the court’s dismissal of the third-party complaint, unanimously affirmed, without costs.

Plaintiff, a backseat passenger in a car driven by her husband, the third-party defendant, was involved in an accident at the intersection of Locust Avenue and the Bear Mountain Parkway with a car'driven by the defendant, then 16 years old. While plaintiff claimed that her husband made a full stop before crossing the parkway and their car was almost *399entirely clear of the two lanes in which defendant was traveling when the accident occurred, defendant maintained that plaintiff’s vehicle failed to stop at the stop sign and, in fact, stopped only after it entered the intersection, thus blocking the traveling lanes and forcing defendant to swerve to the wrong side of the road in a futile attempt to avoid a collision. After trial, the jury found in favor of the defendant. Special interrogatories found that defendant had been negligent, but that such negligence was not the proximate cause of the accident.

Plaintiff did not preserve for appeal her arguments that the issue of proximate cause was not an issue for the jury, or that improper remarks in summation deprived her of a fair trial. In any event, we find both arguments without merit. The issue of proximate cause was properly submitted to the jury (see, McCarthy v Coldway Food Express Co., 90 AD2d 459, 460; Luis v Church of St. Angela Merici, 52 AD2d 352, 353) and the jury’s determination was in accord with the weight of the evidence. Further, the remarks made in summation, of which plaintiff now complains, could not have prejudiced her, both because they were not directed at her and because the jury never reached the issue of the third-party defendant’s negligence. Concur—Kupferman, J. P., Sullivan, Rosenberger, Asch and Smith, JJ.