Stubbs, Joanne N. v. Capellini, III, John a., 108 A.D.3d 1057 (N.Y. App. Div. 2013). · Go Syfert
Stubbs, Joanne N. v. Capellini, III, John a., 108 A.D.3d 1057 (N.Y. App. Div. 2013). Cases Citing This Book View Copy Cite
11 citation events (11 in the last 25 years) across 1 distinct court.
Strongest positive: Murnane Bldg. Contrs., LLC v. Cameron Hill Constr., LLC (nyappdiv, 2018-03-23)
Top citers, strongest first. 6 distinct citers. How cited ↗
discussed Cited as authority (rule) Murnane Bldg. Contrs., LLC v. Cameron Hill Constr., LLC
N.Y. App. Div. · 2018 · confidence medium
Finally, it is well settled that contentions that are raised for the first time in a reply brief are not properly before us ( see Becker-Manning, Inc. v Common Council of City of Utica , 114 AD3d 1143, 1144 [4th Dept 2014]; Stubbs v Capellini , 108 AD3d 1057, 1059 [4th Dept 2013]; Turner v Canale , 15 AD3d 960, 961 [4th Dept 2005], lv denied 5 NY3d 702 [2005]).
discussed Cited as authority (rule) Becker-Manning, Inc. v. Common Council
N.Y. App. Div. · 2014 · confidence medium
We note that, insofar as plaintiffs reply brief may be read to contend that the action presents a justiciable controversy, it is well settled that a contention raised for the first time in a reply brief is not properly before us (see Stubbs v Capellini, 108 AD3d 1057, 1059 [2013]; Turner v Canale, 15 AD3d 960, 961 [2005], lv denied 5 NY3d 702 [2005]).
discussed Cited as authority (rule) Becker-Manning, Inc. v. Common Council
N.Y. App. Div. · 2014 · confidence medium
We note that, insofar as plaintiffs reply brief may be read to contend that the action presents a justiciable controversy, it is well settled that a contention raised for the first time in a reply brief is not properly before us (see Stubbs v Capellini, 108 AD3d 1057, 1059 [2013]; Turner v Canale, 15 AD3d 960, 961 [2005], lv denied 5 NY3d 702 [2005]).
discussed Cited "see" PRZESIEK, MARLYN v. STATE OF NEW YORK
N.Y. App. Div. · 2014 · signal: see · confidence high
We note at the outset that the State’s contention that the stop sign was not negligently placed is not properly before us inasmuch as it is raised for the first time in its reply brief (see Becker- Manning, Inc. v Common Council of City of Utica, 114 AD3d 1143, 1144 ; see Stubbs v Capellini, 108 AD3d 1057, 1059 ).
discussed Cited "see" Przesiek v. State
N.Y. App. Div. · 2014 · signal: see · confidence high
We note at the outset that the State’s contention that the stop sign was not negligently placed is not properly before us inasmuch as it is raised for the first time in its reply brief (see Becker-Manning, Inc. v Common Council of City of Utica, 114 AD3d 1143, 1144 [2014]; see Stubbs v Capellini, 108 AD3d 1057, 1059 [2013]).
discussed Cited "see" Przesiek v. State
N.Y. App. Div. · 2014 · signal: see · confidence high
We note at the outset that the State’s contention that the stop sign was not negligently placed is not properly before us inasmuch as it is raised for the first time in its reply brief (see Becker-Manning, Inc. v Common Council of City of Utica, 114 AD3d 1143, 1144 [2014]; see Stubbs v Capellini, 108 AD3d 1057, 1059 [2013]).
Retrieving the full opinion text from the archive…
Joanne N. Stubbs, Appellant,
v.
John A. Capellini, III, Respondent, Et Al., Defendants
CA 12-01158.
Appellate Division of the Supreme Court of the State of New York.
Jul 5, 2013.
108 A.D.3d 1057
Cited by 11 opinions  |  Published

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. Plaintiffs 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[*1058] observed that the horsé 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 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 [1989]; 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[*1059] 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 [1993]; see Kuncio v Millard Fillmore Hosp., 117 AD2d 975, 976 [1986], lv denied 68 NY2d 608 [1986]; see generally Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]). 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 [1994]). 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 [2003]). Present — Smith, J.P., Fahey, Garni, Valentino and Whalen, JJ.