23-661 Vargas-Moya v. A. Duie Pyle, Inc. et al.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 20th day of March, two thousand twenty-four.

PRESENT: RICHARD C. WESLEY, ALISON J. NATHAN, SARAH A. L. MERRIAM, Circuit Judges. _____________________________________

Yeyson Manuel Vargas-Moya,

Plaintiff-Appellant,

v. 23-661

A. Duie Pyle, Inc., Leszek Kedzierski,

Defendants-Appellees.

_____________________________________ FOR PLAINTIFF-APPELLANT: GENNARO SAVASTANO, Elefterakis, Elefterakis & Panek, New York, NY.

FOR DEFENDANTS-APPELLLEES: CHRISTEN GIANNAROS, Mischel & Horn, P.C., New York, NY (Scott T. Horn, Mischel & Horn, P.C., New York, NY; Bella Pevzner, Sobel Pevzner, LLC, New York, NY; Curtis Sobel, Sobel Pevzner, LLC, Huntington, NY; on the brief).

Appeal from a judgment of the United States District Court for the Eastern

District of New York (Gonzalez, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

Plaintiff-Appellant Yeyson Manuel Vargas-Moya appeals from the district

court’s denial of his motion to enter judgment as a matter of law under Federal

Rule of Civil Procedure 50. We assume the parties’ familiarity with the

2 underlying facts, procedural history, and issues on review, to which we refer only

as necessary to explain our decision.

I. Background

This case arises from an accident that took place near the intersection of

Third Avenue and Third Street in Brooklyn, New York in June 2016. Plaintiff

Vargas-Moya, a taxi driver, was driving a white Nissan Altima in the right

northbound lane on Third Avenue, while Defendant Leszek Kedzierski was

driving a tractor-trailer owned by his employer, Defendant A. Duie Pyle, Inc., in

the left northbound lane. When Kedzierski merged onto the right lane, the two

vehicles collided. Vargas-Moya brought a personal injury action against

Kedzierski alleging negligent operation of the tractor-trailer. The parties offered

differing accounts of the accident, and the jury ultimately entered a special verdict,

finding that Kedzierski had not negligently operated his vehicle.

Before and after the verdict, Plaintiff moved for judgment as a matter of law

pursuant to Rule 50. The district court denied the motion in both instances.

With respect to the pre-verdict Rule 50(a) motion, the court explained that there

existed “facts from which a jury can infer [that Kedzierski] took the necessary steps 3 before he initiated his move into the right lane.” App’x at 449. And with respect

to the post-verdict Rule 50(b) motion, the district court concluded that “under Rule

50 there was more than sufficient evidence to support the jury’s verdict.” Id. at

741.

On appeal, Plaintiff argues that the district court erred in failing to grant his

motion for judgment as a matter of law. We disagree.

II. Discussion

“We review a district court’s ruling on a Rule 50 motion de novo, and apply

the same standard used by the district court below.” Cobb v. Pozzi,

(2d Cir. 2004). “To warrant post-verdict judgment as a matter of law, the

movant must show that the evidence, when viewed most favorably to the non-

movant, was insufficient to permit a reasonable juror to have found in the non-

movant’s favor.” Conte v. Emmons,

(2d Cir. 2018). “The

standard is a high one, met only in rare occasions.”

(quotation marks omitted).

The movant must show a “complete absence of evidence supporting the verdict

[such] that the jury’s findings could only have been the result of sheer surmise and

4 conjecture.” Luciano v. Olsten Corp.,

(2d Cir. 1997) (quotation

marks omitted).

We hold that Defendants presented sufficient evidence for a reasonable jury

to reach a verdict in their favor. New York Vehicle and Traffic Law § 1128(a)

provides that “[a] vehicle shall be driven as nearly as practicable entirely within a

single lane and shall not be moved from such lane until the driver has first

ascertained that such movement can be made with safety.” Thus, liability

depends on whether the defendant driver conformed to the standard of care by

taking steps to ascertain, prior to merging lanes, that merger could be completed

safely.

The jury could reasonably credit Kedzierski’s testimony that he took the

necessary steps to ascertain that he could merge lanes safely. Kedzierski testified

that before merging, he slowed his vehicle to around 5-10 mph, activated his turn

signal, and checked his right blind-spot and side mirrors for a safe opportunity to

merge. Kedzierski also took note from his side mirrors that there was a white

passenger vehicle in the right lane a significant distance away (approximately four

to five car lengths behind him). Given the lack of evidence of other white 5 passenger vehicles in the vicinity, the inference is available that the vehicle

Kedzierski observed at a distance was Vargas-Moya’s white Nissan Altima. On

this record, a reasonable jury could have determined that Kedzierski ascertained

that he could merge onto the right lane safely, and that some intervening event

(e.g., Vargas-Moya attempted to overtake Kedzierski) resulted in the accident.

* * *

We have considered Plaintiff’s remaining arguments and find them to be

without merit. For the foregoing reasons, we AFFIRM the judgment of the

district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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