         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1388
CA 11-02090
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


STEPHEN APPLEBEE, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

COUNTY OF CAYUGA, DEFENDANT-RESPONDENT.
----------------------------------------
COUNTY OF CAYUGA, THIRD-PARTY PLAINTIFF,

                    V

VILLAGE OF PORT BYRON, THIRD-PARTY
DEFENDANT-RESPONDENT.
(APPEAL NO. 1.)


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.


     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.

     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 AD2d 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
                                 -2-                          1388
                                                         CA 11-02090

Tr. Auth., 6 NY3d 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 NY2d 31, 40; Midler v Crane, 67 AD3d 569, 579, revd on
other grounds 14 NY3d 877, rearg denied 15 NY3d 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 AD2d 178, 190, lv
dismissed 70 NY2d 747; see Dubec v New York City Hous. Auth., 39 AD3d
410, 411; Vathy v Rupp Rental Corp., 43 AD2d 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 AD2d 502, 503 [Orix I]; 73 NY Jur 2d, Judgments §
73, n 3; see also Matter of National Equip. Corp. v Ruiz, 19 AD3d 5,
15-16). The Clerk’s judgment was thus a nullity from which no appeal
lies (see Wood v Dolloff, 52 AD3d 1190, 1190; Pavone v Walters, 214
AD2d 1052, 1052; see generally Pauk v Pauk, 234 AD2d 280, 281; Orix
Credit Alliance v Grace Indus., 231 AD2d 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 AD3d 247, 247; see Matter of ZMK Realty Co. v Bokhari, 267
AD2d 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 AD2d 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 AD2d at
187-190; Vathy, 43 AD2d at 892-893; cf. Marine Midland Bank, 50 NY2d
at 40-41; National Equip. Corp., 19 AD3d at 15-16), and we conclude
                                 -3-                          1388
                                                         CA 11-02090

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 AD2d 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
AD2d 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 AD2d 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 NY2d 632, 637; see
Fishman v Beach, 237 AD2d 705, 706). Here, we conclude that
plaintiff’s allegedly negligent conduct was not so extraordinary and
unforeseeable that it warrants a superseding cause instruction (see
Root v Feldman, 185 AD2d 409, 410).

     The parties’ remaining contentions either lack merit or are
rendered academic by our decision.




Entered:   February 8, 2013                     Frances E. Cafarell
                                                Clerk of the Court
