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Porebski v. M.J. Paquet Inc.

September 8, 2009

GRACE CIRILLI POREBSKI, AS ADMINISTRATRIX OF THE ESTATE OF PANTALEO CIRILLI, AND AS ADMINISTRATRIX AD PROSEQUENDUM ON BEHALF OF THE HEIRS AT LAW OF PANTALEO CIRILLI, AND MARIA CIRILLI, INDIVIDUALLY, AND EUROPA MECHANICAL CORP., PLAINTIFFS-APPELLANTS,
v.
M.J. PAQUET INC., RICHARD C. PINTO, THE EDART TRUCK LEASING CORP., HERBERT D. GARRETT, FIDELITY PAPER AND SUPPLY CORPORATION, INC., THOMAS W. MALONEY, KORFANT CONSTRUCTION, ZSOLT KORFANT, ABNER BURGOS, LINDA V. DONZELLA, PAUL J. DONZELLA, PETER KARNAUGH, WILLIAM ROMERO, BORYS A. JOZA, GABRIEL A. JOZA, FELIX D. PENA, GLADYS D. VASQUEZ, AND SANDRA CARRION, DEFENDANTS-RESPONDENTS.
WILLIAM ROMERO AND MARIA QUIROZ, HIS WIFE, PLAINTIFFS,
v.
M.J. PAQUET INC., RICHARD C. PINTO, THE EDART TRUCK LEASING CORP., HERBERT D. GARRETT, FIDELITY PAPER AND SUPPLY CORPORATION, SSS CONSTRUCTION, INC., THOMAS W. MALONEY, KORFANT CONSTRUCTION, ZSOLT KORFANT, ABNER BURGOS, LINDA V. DONZELLA, PAUL J. DONZELLA, PETER KARNAUGH, WILLIAM ROMERO, BORYS A. JOZA, GABRIEL A. JOZA, FELIX D. PENA, GLADYS D. VASQUEZ AND SANDRA CARRION, DEFENDANTS.
FELIX PENA, PLAINTIFF,
v.
M.J. PAQUET INC., RICHARD C. PINTO, THE EDART TRUCK LEASING CORP., HERBERT D. GARRETT, FIDELITY PAPER AND SUPPLY CORPORATION, SSS CONSTRUCTION, INC., THOMAS W. MALONEY, KORFANT CONSTRUCTION, ZSOLT KORFANT, ABNER BURGOS, LINDA V. DONZELLA, PAUL J. DONZELLA, PETER KARNAUGH, WILLIAM ROMERO, BORYS A. JOZA, GABRIEL A. JOZA, FELIX D. PENA, GLADYS D. VASQUEZ AND SANDRA CARRION, DEFENDANTS.
SANDRA CARRION, PLAINTIFF,
v.
M.J. PAQUET INC., RICHARD C. PINTO, THE EDART TRUCK LEASING CORP., HERBERT D. GARRETT, FIDELITY PAPER AND SUPPLY CORPORATION, SSS CONSTRUCTION, INC., THOMAS W. MALONEY, KORFANT CONSTRUCTION, ZSOLT KORFANT, ABNER BURGOS, LINDA V. DONZELLA, PAUL J. DONZELLA, PETER KARNAUGH, WILLIAM ROMERO, BORYS A. JOZA, GABRIEL A. JOZA, FELIX D. PENA, GLADYS D. VASQUEZ AND SANDRA CARRION, DEFENDANTS.
JULIO MARTINEZ, PLAINTIFF,
v.
M.J. PAQUET INC., RICHARD C. PINTO, THE EDART TRUCK LEASING CORP., HERBERT D. GARRETT, FIDELITY PAPER AND SUPPLY CORPORATION, SSS CONSTRUCTION, INC., THOMAS W. MALONEY, KORFANT CONSTRUCTION, ZSOLT KORFANT, ABNER BURGOS, LINDA V. DONZELLA, PAUL J. DONZELLA, PETER KARNAUGH, WILLIAM ROMERO, BORYS A. JOZA, GABRIEL A. JOZA, FELIX D. PENA, GLADYS D. VASQUEZ AND SANDRA CARRION, DEFENDANTS.
CLARENDON NATIONAL INSURANCE CO., PLAINTIFF,
v.
M.J. PAQUET INC., RICHARD C. PINTO, THE EDART TRUCK LEASING CORP., HERBERT D. GARRETT, FIDELITY PAPER AND SUPPLY CORPORATION, SSS CONSTRUCTION, INC., THOMAS W. MALONEY, KORFANT CONSTRUCTION, ZSOLT KORFANT, ABNER BURGOS, LINDA V. DONZELLA, PAUL J. DONZELLA, PETER KARNAUGH, WILLIAM ROMERO, BORYS A. JOZA, GABRIEL A. JOZA, FELIX D. PENA, GLADYS D. VASQUEZ AND SANDRA CARRION, DEFENDANTS.
LIBERTY MUTUAL INSURANCE GROUP A/S/O GLADYS D. VASQUEZ & FELIX PENA, PLAINTIFFS,
v.
M.J. PAQUET INC., RICHARD C. PINTO, THE EDART TRUCK LEASING CORP., HERBERT D. GARRETT, FIDELITY PAPER AND SUPPLY CORPORATION, SSS CONSTRUCTION, INC., THOMAS W. MALONEY, KORFANT CONSTRUCTION, ZSOLT KORFANT, ABNER BURGOS, LINDA V. DONZELLA, PAUL J. DONZELLA, PETER KARNAUGH, WILLIAM ROMERO, BORYS A. JOZA, GABRIEL A. JOZA, FELIX D. PENA, GLADYS D. VASQUEZ AND SANDRA CARRION, DEFENDANTS.
SELECTIVE INSURANCE A/S/O EUROPA MECHANICAL, PLAINTIFF,
v.
M.J. PAQUET INC., RICHARD C. PINTO, THE EDART TRUCK LEASING CORP., HERBERT D. GARRETT, FIDELITY PAPER AND SUPPLY CORPORATION, SSS CONSTRUCTION, INC., THOMAS W. MALONEY, KORFANT CONSTRUCTION, ZSOLT KORFANT, ABNER BURGOS, LINDA V. DONZELLA, PAUL J. DONZELLA, PETER KARNAUGH, WILLIAM ROMERO, BORYS A. JOZA, GABRIEL A. JOZA, FELIX D. PENA, GLADYS D. VASQUEZ AND SANDRA CARRION, DEFENDANTS.
GRACE CIRILLI POREBSKI AS ADMINISTRATRIX OF THE ESTATE OF PANTALEO CIRILLI, AND AS ADMINISTRATRIX AD PROSEQUENDUM ON BEHALF OF THE HEIRS AT LAW OF PANTALEO CIRILLI, AND MARIA CIRILLI, INDIVIDUALLY AND EUROPA MECHANICAL CORP., PLAINTIFFS,
v.
M.J. PAQUET INC., RICHARD C. PINTO, THE EDART TRUCK LEASING CORP., HERBERT D. GARRETT, FIDELITY PAPER AND SUPPLY CORPORATION, SSS CONSTRUCTION, INC., THOMAS W. MALONEY, KORFANT CONSTRUCTION, ZSOLT KORFANT, ABNER BURGOS, LINDA V. DONZELLA, PAUL J. DONZELLA, PETER KARNAUGH, WILLIAM ROMERO, BORYS A. JOZA, GABRIEL A. JOZA, FELIX D. PENA, GLADYS D. VASQUEZ AND SANDRA CARRION, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-0222-04, L-2078-04, L-5282-04, L-3949-04, L-1542-05, L-3239-05, L-2596-05, L-3910-05, and L-9184-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 11, 2009

Before Judges Stern, Rodríguez and Payne.

This case arises out of a fatal, twelve-vehicle accident that took place on November 24, 2003, near the intersection of Route 3 West and the Garden State Parkway in Clifton. Pantaleo Cirilli, driving a white van for Europa Mechanical Corporation, was killed in the collision. The matter began as nine separate lawsuits against the various defendants in this matter, including defendants-respondents M.J. Paquet Inc. and Richard C. Pinto (collectively "Pinto"), plaintiffs-appellants Estate of Pantaleo Cirilli and Europa Mechanical Corp. (collectively, "Cirilli"), and defendant-respondent Sandra Carrion ("Carrion"). These nine suits were consolidated into a single case.

Pinto, Cirilli and Carrion each moved for summary judgment, seeking dismissal of the claims against them. The motion judge granted summary judgment to Carrion and denied Pinto's and Cirilli's motions for summary judgment. While the summary judgment motions were pending, the various plaintiffs and the remaining defendants entered into a settlement agreement, under which all of the plaintiffs' claims were resolved. A jury trial was held, resulting in a verdict finding Pinto sixty-five percent at fault and Cirilli thirty-five percent at fault.

Cirilli appeals, arguing the motion judge improperly granted summary judgment to Carrion, the trial judge improperly excluded the testimony of a witness, Lilly Abellana (Abellana), the trial judge made several errors in the jury charge, and the trial judge erred in denying Cirilli's motions for judgment notwithstanding the verdict (JNOV) and a new trial.

We reverse and remand for a new trial.

These are the salient facts.

An automobile accident took place on November 24, 2003, on westbound Route 3 in Clifton, New Jersey. Pinto was driving a red tractor trailer approximately forty-five to fifty miles per hour at the time of the accident. He did not recall seeing any brake lights, stopped traffic, or other signs of brakes being applied, and did not hear any car or truck horns. Traffic was heavy for the quarter-mile before the scene of the accident. A car Pinto could not identify, but which he thought was "dark in color," struck him on his left. He then noticed Cirilli coming up along his left side:

[Cirilli] came over in the middle lane, had his blinker on but came over... He came in too close, and he had nowhere to pull away to keep going....

He didn't cut me off, I don't think he was driving carelessly, he didn't cut me of [sic]. I think everything stopped in front of him, and he had nowhere to go, and I swerved to miss him. I don't believe he did it.

Pinto estimated Cirilli changed lanes at least "a half mile" from the scene of the accident and about three seconds elapsed between the lane change and the collision. When Cirilli changed lanes and pulled in front of Pinto, Pinto swerved to the right. He was unable to avoid a collision and struck the Cirilli van, sending it into a counterclockwise spin.

A tractor-trailer driver, Herbert Garrett, saw the Pinto/Cirilli collision in his side mirror. He saw Pinto strike the Cirilli van, which then struck his tractor-trailer and was subsequently struck by other vehicles. Cirilli was killed.

When asked why he did not attempt to use his brakes, Pinto stated that it is better in such situations to "look for a hole" because "you just slide, you hydroplane, melted rubber makes you slide. The best thing is to try to get away...."

Before colliding with Cirilli, Pinto was involved in two minor collisions with Carrion and another vehicle. Pinto did not seek contribution for that portion of the settlement which was ...


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