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Surkis v. Strelecki

Decided: May 26, 1971.

AARON SURKIS, AN INFANT, BY HIS GUARDIAN AD LITEM, DOROTHY F. SURKIS, AND DOROTHY F. SURKIS, INDIVIDUALLY, PLAINTIFFS-RESPONDENTS,
v.
JUNE STRELECKI, DIRECTOR OF THE DIVISION OF MOTOR VEHICLES, ETC., DEFENDANT-RESPONDENT, AND PETER SZEWZEK, DEFENDANT-APPELLANT



Goldmann, Leonard and Fritz. The opinion was delivered by Leonard, J.A.D.

Leonard

In this automobile negligence personal injury case defendant Peter Szewzek appeals from the entry of a judgment n.o.v. against him.

The infant plaintiff, by his mother as guardian ad litem , and the mother individually, brought an action against defendant

June Strelecki, then Director of the Division of Motor Vehicles (Director) and defendant Peter Szewzek. The basis of the action was the allegation that on December 12, 1967 the infant plaintiff, while crossing Amboy Avenue at its intersection with Lawrence Street, Perth Amboy, was struck by an automobile traveling north on Amboy Avenue.

Plaintiffs first alleged that the automobile involved was owned and operated by an unknown person or persons (thus, pursuant to N.J.S.A. 39:6-78, the Director was sued on one count) and, alternatively, that Szewzek was the owner and operator thereof. Both defendants denied negligence and asserted contributory negligence. Additionally, Szewzek denied that he was operating the vehicle which struck the infant at the specified time and place. To the contrary, the Director asserted that Szewzek was the driver and the action was improperly brought against her.

Trial was held on December 1 and 2, 1969. The jury returned a verdict against the Director in the sum of $18,000 in favor of the infant and $4000 in favor of the mother individually, and found a no cause of action in favor of Szewzek. Judgment was entered on December 5, 1969.

On December 12, 1969 the Director moved for a new trial on the ground that the verdict constituted a manifest denial of justice. This motion was argued on January 9, 1970 and was denied by the court. No formal order was entered. On February 6 the Director filed an amended motion for judgment or, in the alternative, for a new trial upon the same grounds as she had previously argued. This motion was argued on February 13, 1970.

The trial judge found that the jury verdict was against the weight of the evidence in only one respect -- who was operating the vehicle which struck plaintiff? He found that he could separate the jury's finding on this issue from its finding as to negligence of the driver, lack of contributory negligence and damages. Accordingly, he ordered a new trial solely on the issue of whether the vehicle at the time of the accident was operated by an unknown person or by Szewzek.

The judge specifically noted that he was not disturbing the verdict as to negligence of the driver, contributory negligence and damages. Again, no formal order was signed.

On March 5, 1970 Szewzek's present counsel, who had been substituted for trial counsel, moved for leave to reargue the previous motions and to fix the order on said motions. Following reargument the court, by order dated March 31, 1970, set aside the verdicts against the Director and in favor of Szewzek as being against the weight of the evidence and a manifest denial of justice, and entered judgment against Szewzek notwithstanding the verdict. The amounts originally awarded by the jury were not disturbed. On this appeal Szewzek contends that the court erroneously entered the judgment (against him) notwithstanding the verdict of the jury. We agree.

The procedure for the entering of judgments notwithstanding a verdict (n.o.v.) is found in R. 4:40-1 and R. 4:40-2(a), (b) and (c) (formerly R.R. 4:51-1 and 4:51-2(a) to (e)). R. 4:40-1 contemplates that a motion for judgment be made "either at the close of all evidence or at the close of the evidence offered by an opponent." R. 4:40-2(a) authorizes the court to reserve decision on such a motion "made at the close of all evidence," submit the case to the jury and within ten days after the verdict to decide the motion and enter judgment (n.o.v.) in accordance with the motion. Under (b), if the motion ...


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