Opinion
February 24, 1994
Appeal from the Supreme Court, Nassau County (Francis X. Becker, J.).
During summation, an objection was made to a torrent of improper comment from plaintiffs' counsel who stated that there had been "attempts" to "block" evidence from getting before the jury and to "delay these proceedings"; complained that "they [defense counsel] tried to keep evidence from you" with reference to certain hospital records from a foreign jurisdiction which the court excluded from evidence; commented on the fact that a physician had been subpoenaed and paid "a large sum of money" when no medical witness had been called by defendants; and referred to "positive findings" in the report of one of defendants' expert physicians who had not been called as a witness.
The court properly directed a verdict on the issue of liability in favor of plaintiffs. Any jury finding of negligence on plaintiffs' part, had the matter been submitted to the jury, would have been the result of pure speculation. Defendant did not observe the speed of plaintiffs' vehicle, and did not even observe the vehicle for some 15 seconds prior to making his left turn across plaintiffs' travelling lane. The testimony of the plaintiffs that the defendant made a sudden turn is unimpeached and uncontradicted. By no rational process could a trier of fact find that plaintiffs had been negligent in the operation of their vehicle, whereas defendant by his own admission was negligent in failing to keep a lookout for oncoming traffic prior to making his turn (Hernandez v. Joseph, 143 A.D.2d 632).
Were it not for the fact that the trial court immediately sustained objection to counsel's comments, and issued curative instructions, the comments of plaintiffs' counsel would have warranted a reversal (Reilly v. Billy Blake Discount Dept. Stores, 39 A.D.2d 925). There was ample evidence of serious injury to submit the issue to the jury. Nor did the trial court err in ruling that plaintiffs' inadvertent failure to answer defendant All Island's counterclaim for contribution was excusable, and did not warrant the entry of judgment on default. The matter was not raised before trial, or even at trial, until after plaintiffs had presented their case on liability, and established that the defendants were wholly responsible for the happening of the accident as a matter of law. In this context, there was clearly a basis for the court to find that the ends of justice would not be served by the entry of a default judgment as a result of plaintiffs' inadvertence (Stevenson Corp. v. Dormitory Auth., 112 A.D.2d 113). Indeed, the Second Department has held that CPLR 3215 applies to the taking of a default with respect to a counterclaim, and that the counterclaim may be dismissed where, as here, there has been no attempt to enter judgment within the requisite one-year period (Mint Factors v. Goldman, 74 A.D.2d 599). Nor is the present action a third-party action where the one-year period would commence with the entry of judgment against the third-party plaintiff (see, Multari v. Glalin Arms Corp., 28 A.D.2d 122, appeal dismissed 23 N.Y.2d 740).
Concur — Rosenberger, J.P., Ross, Asch, Rubin and Williams, JJ.