SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

608 

CA 12-01158 

PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ. 

 

JOANNE N. STUBBS, PLAINTIFF-APPELLANT, 

V MEMORANDUM AND ORDER

JOHN A. CAPELLINI, III, DEFENDANT-RESPONDENT, 

RALPH J. FREETLY AND ABF FREIGHT SYSTEM, INC., 

DEFENDANTS. 

(APPEAL NO. 1.) 

 

HOGAN WILLIG, PLLC, AMHERST (STEVEN M. COHEN OF COUNSEL), FOR

PLAINTIFF-APPELLANT. 

SUGARMAN LAW FIRM, LLP, BUFFALO (CARLTON K. BROWNELL, III, OF

COUNSEL), FOR DEFENDANT-RESPONDENT. 

 

Appeal from a judgment of the Supreme Court, Niagara County

(Ralph A. Boniello, III, J.), entered March 21, 2012. The judgment

dismissed the complaint against defendant John A. Capellini, III, upon

a jury verdict. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking to recover

damages for personal injuries she sustained in an automobile accident

that occurred while she was traveling on the New York State Thruway in

the Town of Hamburg, New York. Plaintiff’s suit stems from three

separate automobile accidents that occurred shortly after midnight on

November 18, 2007. The facts are largely undisputed. The first

accident involved defendant John A. Capellini, III, whose pickup truck

and horse trailer slid on ice on a thruway overpass when he applied

his brakes after seeing the brake lights of a vehicle ahead of him. 

When his truck came to a stop in the median, he observed that the

horse trailer, which had detached from his truck, was blocking the

left lane of the thruway. Capellini exited his vehicle and proceeded

to warn other vehicles about the accident. He noticed for the first

time while standing on the pavement that it was icy. The second

accident involved defendant Ralph J. Freetly, an employee of defendant

ABF Freight System, Inc. (ABF), who was driving a tractor trailer in

the right lane of the thruway as he approached the Capellini accident. 

Freetly applied his brakes when he saw two tractor trailers stopped on

the right shoulder with their flashing lights on and started to brake

more firmly after seeing someone in front of the horse trailer waiving

a flashlight. As he braked, the rear trailer of his truck slid and
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CA 12-01158 

struck one of the tractor trailers parked on the right shoulder,

causing the contents of Freetly’s trailer to spill onto the road. 

Freetly testified that he had not encountered any ice on the thruway

from the time he passed the Pennsylvania border until the time he

reached the overpass where Capellini’s accident occurred. The third

accident involved plaintiff, who has no recollection of the accident. 

A non-party witness testified that, as plaintiff was traveling over

the overpass, plaintiff applied her brakes, and her vehicle spun

around and struck the guardrail twice. The witness testified that he

noticed that the overpass was icy, but that he could not see any ice

even as he stood on it.

Following a trial, the jury returned a verdict finding that

Capellini, Freetly and plaintiff were not negligent. ABF thus also

was not negligent inasmuch as the basis for its liability was

vicarious only. Thereafter, plaintiff moved pursuant to CPLR 4404 (a)

to, inter alia, set aside the verdict as against the weight of the

evidence and for a new trial. In appeal No. 2, plaintiff appeals from

an order denying her motion. In appeal Nos. 1 and 3, plaintiff

appeals from judgments that, inter alia, dismissed the complaint,

respectively, against Capellini and against Freetly and ABF upon the

jury verdict of no cause of action. We note at the outset that,

inasmuch as the order in appeal No. 2 is subsumed in the judgments in

appeal Nos. 1 and 3, we dismiss plaintiff’s appeal from the order in

appeal No. 2 (see Smith v Catholic Med. Ctr. of Brooklyn & Queens, 155

AD2d 435, 435; see also CPLR 5501 [a] [1]). 

In the remaining appeals, plaintiff contends that Supreme Court

erred in denying her posttrial motion inasmuch as the verdict is

against the weight of the evidence. We reject that contention. It is

well established that “[a] motion to set aside a jury verdict of no

cause of action should not be granted unless the preponderance of the

evidence in favor of the moving party is so great that the verdict

could not have been reached upon any fair interpretation of the

evidence” (Dannick v County of Onondaga, 191 AD2d 963, 964; see Kuncio

v Millard Fillmore Hosp., 117 AD2d 975, 976, lv denied 68 NY2d 608;

see generally Lolik v Big V Supermarkets, 86 NY2d 744, 746). Here,

there was no such preponderance of the evidence in favor of plaintiff. 

As an initial matter, we note that plaintiff raised for the first time

in her reply brief the contention that the emergency doctrine was

improperly charged at trial, and thus that contention is not properly

before us (see O’Sullivan v O’Sullivan, 206 AD2d 960, 960-961).

Additionally, we conclude that a fair interpretation of the evidence

presented here would allow the jury to conclude that, (1) in appeal

No. 1, Capellini did not know the overpass was icy, that his reactions

before and after the accident were reasonable and that he was not

negligent; and that, (2) in appeal No. 3, Freetly’s conduct in slowing

down as he approached the first accident and attempting to steer his

vehicle clear of the horse trailer and the vehicles on the right

shoulder was reasonable under the circumstances (see generally DiSalvo

v Hiller, 2 AD3d 1386, 1387).

Entered: July 5, 2013 Frances E. Cafarell

Clerk of the Court