        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

397
CA 16-00667
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND SCUDDER, JJ.


AMY REID, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

CARRIE LEVY AND ROCK CITY CHRYSLER,
DEFENDANTS-RESPONDENTS.
(APPEAL NO. 2.)


BROWN CHIARI LLP, BUFFALO (MICHAEL DRUMM OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

HURWITZ & FINE, P.C., BUFFALO (TODD C. BUSHWAY OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from a judgment of the Supreme Court, Chautauqua County
(Paul Wojtaszek, J.), entered December 29, 2015. The judgment
dismissed the complaint upon a jury verdict of no cause of action.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law without costs, the posttrial motion is
granted, the verdict is set aside, and a new trial is granted on the
issue of liability.

     Memorandum: Plaintiff commenced this action to recover damages
for personal injuries that she sustained when she was struck by a
vehicle owned by defendant Rock City Chrysler and operated by Carrie
Levy (defendant). Following a jury trial on the issue of liability
only, the jury found that defendant was negligent but that such
negligence was not a substantial factor in causing the accident.
Plaintiff sought to set aside the verdict on the grounds that it was
irreconcilably inconsistent and that the finding that defendant’s
negligence was not a substantial factor in causing the accident is
against the weight of the evidence. In appeal No. 1, plaintiff
appeals from an order denying her posttrial motion to set aside the
verdict and, in appeal No. 2, she appeals from the judgment
subsequently entered on the basis of that verdict.

     At the outset, we note that the order in appeal No. 1 is subsumed
in the judgment in appeal No. 2 and that the appeal from the order
must be dismissed on that basis (see Smith v Catholic Med. Ctr. of
Brooklyn & Queens, 155 AD2d 435, 435; see also CPLR 5501 [a] [1]). We
further note that plaintiff’s challenge to the verdict on the ground
of its purported inconsistency is not preserved for our review
inasmuch as plaintiff did not raise that issue until after the jury
                                 -2-                           397
                                                         CA 16-00667

had been discharged (see Berner v Little, 137 AD3d 1675, 1676; Schley
v Steffans, 79 AD3d 1753, 1753).

     We agree with plaintiff, however, that Supreme Court erred in
denying her posttrial motion. Although a jury’s “finding that a party
was at fault but that such fault was not a proximate cause of the
accident is inconsistent and against the weight of the evidence only
when the issues are so inextricably interwoven as to make it logically
impossible to find negligence without also finding probable cause”
(Berner, 137 AD3d at 1676 [internal quotation marks omitted]; see
Szymanski v Holenstein, 15 AD3d 941, 942), we “conclude under the
facts of this case that the jury’s ‘finding of negligence cannot be
reconciled with the jury’s finding of no proximate cause’ ”
(Szymanski, 15 AD3d at 942; see Martinez v Wascom, 57 AD3d 1415, 1416;
Murphy v Holzinger, 6 AD3d 1072, 1072-1073). We thus conclude that
the finding that defendant’s negligence was not a substantial factor
in causing the accident could not have been reached upon any fair
interpretation of the evidence and is against the weight of the
evidence (see Johnson v Schrader [appeal No. 2], 299 AD2d 815, 816;
see also Martinez, 57 AD3d at 1416).




Entered:   March 31, 2017                      Frances E. Cafarell
                                               Clerk of the Court
