Deflorio v. County of Nassau: When Evidence Shows an Unmarked Crosswalk, Vehicle and Traffic Law § 1152 Need Not Be Charged; Strong Deference to Jury Verdicts Under CPLR 4404(a)

1. Introduction

In Deflorio v County of Nassau (2026 NY Slip Op 01765), the Appellate Division, Second Department reviewed post-trial challenges arising from a pedestrian–police-vehicle collision at an intersection in Mineola, New York. The plaintiff, Susan N. Deflorio, was struck by a Nassau County police vehicle operated by Andrew Martone, and her left ankle was crushed under the wheel.

After separate trials on liability and damages, the jury found the County 100% liable and awarded substantial damages, including $1,000,000 for past pain and suffering, $2,250,000 for future pain and suffering, and $700,000 for future medical expenses. The defendants moved under CPLR 4404(a) to set aside the verdict (liability and/or damages), arguing, among other things, that the trial court should have charged Vehicle and Traffic Law § 1152 and that the verdict was against the weight of the evidence and the damages were excessive.

The appeal also presented a procedural issue: whether a direct appeal from an intermediate order survives once a final judgment is entered.

2. Summary of the Opinion

  • Procedural ruling: The court dismissed the appeal from the March 19, 2021 order because the entry of judgment terminated the right of direct appeal from that order.
  • Liability: The judgment on liability was affirmed; the jury’s finding that the plaintiff was not negligent was supported by a fair interpretation of the evidence.
  • Jury charge: The Supreme Court correctly declined to charge Vehicle and Traffic Law § 1152 because the trial evidence established that the plaintiff was in an unmarked crosswalk.
  • Damages: The challenged awards for pain and suffering and future medical expenses did not “deviate materially from what would be reasonable compensation” under CPLR 5501(c) when measured against comparable precedents.
  • Other issues: The County’s remaining arguments were deemed unpreserved for appellate review.

3. Analysis

3.1 Precedents Cited

The decision is structured around established appellate standards governing (i) CPLR 4404(a) post-trial relief, (ii) weight-of-the-evidence review, and (iii) CPLR 5501(c) review of damages. The cited authorities function less as competing lines of doctrine and more as reinforcing layers of deference to jury determinations—unless a recognized trial error undermined “substantial justice,” the verdict was not fairly supported, or the damages award was outside the range of reasonableness.

A. “Interest of justice” and CPLR 4404(a)

  • Traca v Catapano Engg. & Architecture, P.C.: Quoted for the core propositions that CPLR 4404(a) permits setting aside a verdict “in the interest of justice,” that such motions encompass trial errors (e.g., evidentiary rulings and charge mistakes), and that the trial court asks whether “substantial justice has been done.” The court used Traca as the principal template to reject the County’s claim of charge error regarding Vehicle and Traffic Law § 1152.
  • Chihuahua v Birchwood Estates, LLC: Cited alongside Traca to confirm the breadth of CPLR 4404(a) “interest of justice” review.
  • Allen v Uh: Cited to illustrate the types of trial-level problems (including charge mistakes) cognizable under “interest of justice” review and to reinforce the “substantial justice” framing.
  • Fan v Buzzitta: The key authority supporting the specific charge ruling: where evidence shows the pedestrian was within an unmarked crosswalk, a charge premised on Vehicle and Traffic Law § 1152 (addressing pedestrian duties when crossing outside crosswalks) is not appropriate. The court relied on Fan to conclude there was no charge error and thus no deprivation of “substantial justice.”

B. Weight of the evidence review

  • Traca v Catapano Engg. & Architecture, P.C.: Also cited for the familiar formulation that a verdict should not be set aside unless it could not have been reached by “any fair interpretation of the evidence.”
  • Lolik v Big V Supermarkets, Inc.: Cited for the Court of Appeals articulation of the “fair interpretation” standard, anchoring the Second Department’s analysis in high-level authority.
  • Cruz-Rivera v Natl. Grid Energy Mgt., LLC: Cited as another Second Department application of the “fair interpretation” framework.
  • Hervey v Northern Westchester Hosp.: Cited for the proposition that weight-of-the-evidence review is discretionary and involves balancing multiple factors rather than deciding a pure question of law.
  • Nicastro v Park: Cited both for the discretionary nature of the inquiry and—critically—for the cautionary principle that a court should not lightly deprive a successful litigant of a favorable verdict absent indications that “substantial justice has not been done.” This “considerable caution” language underwrites the court’s refusal to disturb the jury’s negligence apportionment.

C. Excessiveness review under CPLR 5501(c)

  • Wynter v Transdev Servs., Inc.: Cited for the general rule that pain-and-suffering damages are primarily for the jury and will be disturbed only if they “deviate materially” from reasonable compensation.
  • Pimenta v 1504 Cia, LLC: Cited in support of the CPLR 5501(c) framework and as comparable precedent validating the challenged awards.
  • Aguilar v Graham Terrace, LLC: Cited for the method: “reasonableness” must be measured against relevant precedent involving comparable injuries; prior awards are not binding but provide guidance. The court invoked Aguilar both as doctrine and as a comparable-case reference.
  • Kayes v Liberati: Cited for the “comparable precedent” methodology and included as a comparison point for the size of awards.
  • Kowalsky v County of Suffolk and De La Cruz v New York City Tr. Auth.: Cited as additional benchmarks supporting the conclusion that the jury’s pain-and-suffering and future medical expense awards fell within the reasonable range.

3.2 Legal Reasoning

  1. Appellate posture and procedural cleanup. The court first resolved the jurisdictional/procedural matter by dismissing the direct appeal from the intermediate order because entry of judgment terminated that appeal route. Practically, this channels review through the appeal from the final judgment (which “brings up for review” many prior rulings), while avoiding duplicative appellate tracks.
  2. No “interest of justice” basis: no charge error on Vehicle and Traffic Law § 1152. The County’s central “trial error” claim was that the jury should have been instructed on Vehicle and Traffic Law § 1152. The court rejected this because the evidence established the plaintiff was in an unmarked crosswalk. Under that factual predicate, a § 1152 instruction (which concerns pedestrians crossing at points other than crosswalks) would misframe the governing duties. The absence of error meant the County could not show it was deprived of “substantial justice” under CPLR 4404(a).
  3. Weight-of-the-evidence deference: liability verdict sustained. Applying the “fair interpretation of the evidence” test, the court held the jury could rationally find the plaintiff not negligent and the County fully liable. By citing Nicastro v Park, the court emphasized that even if the record could support competing inferences, that is not enough—overturning a jury verdict requires a showing that the verdict cannot be reconciled with a fair view of the proof.
  4. Damages review: “deviates materially” standard satisfied. The court measured the awards against comparable cases and concluded the amounts for past and future pain and suffering and future medical expenses did not “deviate materially” from reasonable compensation. Notably, the decision reflects the Second Department’s standard approach: it does not re-try damages, but situates the award within a range suggested by prior appellate outcomes for similar injuries.
  5. Preservation rules enforced. The court disposed of remaining arguments as unpreserved, underscoring that post-trial and appellate relief often turns as much on proper objection/practice at trial as on substantive merits.

3.3 Impact

  • Jury charge discipline in pedestrian cases. The decision reinforces a practical trial rule: where the proof supports that a pedestrian was within an unmarked crosswalk at an intersection, instructing the jury under Vehicle and Traffic Law § 1152 is improper and unnecessary. This can materially affect comparative negligence arguments, because § 1152 is commonly invoked to suggest heightened pedestrian duties when crossing outside a crosswalk.
  • High bar for CPLR 4404(a) relief. By framing both “interest of justice” and “weight of the evidence” through deference-heavy precedents, the decision signals that post-verdict attacks must identify concrete, outcome-relevant trial error or a verdict that cannot be squared with a fair view of the evidence—not merely a plausible alternative view.
  • Damages predictability through comparator cases. The court’s reliance on a cluster of comparable-injury cases to uphold multi-million-dollar pain-and-suffering and medical-expense awards continues the Second Department’s trend: damages are policed through range-setting precedent rather than strict caps, giving litigants a usable body of benchmarks for valuation and settlement.
  • Procedural clarity for appellate strategy. The dismissal of the appeal from the order is a reminder to practitioners: once judgment is entered, the appeal should generally be taken from the judgment, and intermediate-order appeals may be dismissed as academic/terminated.

4. Complex Concepts Simplified

CPLR 4404(a)
A New York procedure allowing a trial court, after a jury verdict, to set the verdict aside and order a new trial (or other relief). Two common theories are: (i) the verdict is against the weight of the evidence, or (ii) a new trial is needed “in the interest of justice” because of trial errors.
“Interest of justice” / “substantial justice”
A fairness-based review asking whether something about the trial process (evidence rulings, jury instructions, misconduct, surprise, newly discovered evidence) prevented a fair outcome—even if the verdict is not strictly “illegal.”
Weight of the evidence vs. legal sufficiency
“Weight” asks whether the jury’s verdict is supported by a fair interpretation of the proof (a discretionary, balance-and-fairness assessment). This differs from “legal sufficiency,” which asks whether any rational juror could find for the winner as a matter of law.
CPLR 5501(c): “deviates materially”
The appellate standard for reviewing whether a damages award is excessive or inadequate. The court compares the award to amounts approved in prior cases with similar injuries to determine whether it falls outside a reasonable range.
Unmarked crosswalk
A crosswalk that exists at an intersection by operation of law/road design even if not painted. Its presence affects which traffic rules and jury instructions apply to pedestrian and driver duties.
Vehicle and Traffic Law § 1152 (as used in this decision)
A provision commonly associated with pedestrian conduct when crossing at points other than crosswalks. If the pedestrian is instead found to be within an (even unmarked) crosswalk, the rationale for a § 1152 instruction falls away.

5. Conclusion

Deflorio v County of Nassau affirms a plaintiff’s verdict in a police-vehicle pedestrian injury case by applying strongly deferential standards to jury outcomes and by rejecting an attempted reframing of pedestrian duties through an inapplicable Vehicle and Traffic Law § 1152 charge. The decision’s practical significance lies in its clear linkage between the factual finding of an unmarked crosswalk and the legal propriety of jury instructions, its reiteration that CPLR 4404(a) relief is exceptional, and its confirmation that substantial pain-and-suffering and medical-expense awards will be upheld when consistent with comparable precedent under CPLR 5501(c).