Opinion
2013-03158
06-03-2015
Eddy QUIROZ, et al., appellants, v. Bradley G. ZOTTOLA, et al., respondents.
Fitzgerald & Fitzgerald, P.C., Yonkers, N.Y. (John E. Fitzgerald, John M. Daly, Eugene S.R. Pagano, Mitchell Gittin, Mark S. Pruzan, and Deborah Pearl Henkin of counsel), for appellants. Ahmuty, Demers & McManus, Albertson, N.Y. (Nicholas M. Cardascia and Glenn A. Kaminska of counsel), for respondents.
Fitzgerald & Fitzgerald, P.C., Yonkers, N.Y. (John E. Fitzgerald, John M. Daly, Eugene S.R. Pagano, Mitchell Gittin, Mark S. Pruzan, and Deborah Pearl Henkin of counsel), for appellants.
Ahmuty, Demers & McManus, Albertson, N.Y. (Nicholas M. Cardascia and Glenn A. Kaminska of counsel), for respondents.
JOHN M. LEVENTHAL, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, and SYLVIA O. HINDS–RADIX, JJ.
Opinion In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Westchester County (Smith, J.), dated February 15, 2013, which, upon a jury verdict in favor of the defendants on the issue of liability, is in favor of the defendants and against them, dismissing the complaint.
ORDERED that the judgment is affirmed, with costs.
The plaintiff Eddy Quiroz (hereinafter the injured plaintiff) allegedly was injured when a school bus she was driving collided with a garbage truck being driven by the defendant Bradley G. Zottola. The injured plaintiff, and her husband suing derivatively, commenced this action against Zottola and his employer, the defendant Panichi Holding Corp. The trial court severed the issue of Zottola's alleged negligence from the issue of his codefendant's alleged negligence. Although “[i]t is preferable, and sometimes essential, that issues of liability be resolved at one stage of the trial” (Greenberg v. City of Yonkers, 37 N.Y.2d 907, 909, 378 N.Y.S.2d 382, 340 N.E.2d 744 ), “[t]he grant or denial of a request for severance is a matter of judicial discretion, which should not be disturbed on appeal absent a showing of prejudice to a substantial right of the party seeking severance” (Chiarello v. Rio, 101 A.D.3d 793, 797, 957 N.Y.S.2d 133 ; see Zili v. City of New York, 105 A.D.3d 949, 950, 963 N.Y.S.2d 684 ). Under the circumstances of this case, the court's determination to sever the issue of Zottola's alleged negligence from the issue of his employer's alleged negligence in hiring and retaining him, in order to alleviate any potential prejudice to Zottola, was not an improper exercise of the court's discretion (cf. Talavera v. Arbit, 18 A.D.3d 738, 795 N.Y.S.2d 708 ).
Moreover, the trial court did not improvidently exercise its discretion in limiting the cross-examination of Zottola. The court properly limited the plaintiffs' cross-examination of Zottola regarding his prior employment and negative credit history, due to the collateral nature of these issues (see Badr v. Hogan, 75 N.Y.2d 629, 635, 555 N.Y.S.2d 249, 554 N.E.2d 890 ; Parsons v. 218 E. Main St. Corp., 1 A.D.3d 420, 766 N.Y.S.2d 895 ). We also note that, with respect to Zottola's credit history, “civil judgments cannot be characterized as bad or immoral ... acts involving moral turpitude that would allow them to be used to question the defendant's credibility” (People v. Heiss, 221 A.D.2d 562, 563, 633 N.Y.S.2d 828 ). The plaintiffs' contention that the trial court's jury charge was self-contradictory is not preserved for appellate review, as the plaintiffs never raised any such argument at trial, nor objected to the charge as given prior to the jury's deliberations (see CPLR 4110–b ; see also CPLR 4107 ; De Long v. County of Erie, 60 N.Y.2d 296, 306, 469 N.Y.S.2d 611, 457 N.E.2d 717 ).
The plaintiffs' remaining contentions are without merit.