Bennett v. Cruz

168 A.D.2d 307

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 13, 1990
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Bruce McM. Wright, J.), entered November 16, 1989, which, following a jury verdict in favor of the plaintiff Verna Bennett, awarded her damages in the amount of $215,000, unanimously affirmed, with costs.

The plaintiff was struck by the rear of defendants’ truck while crossing the street at, or immediately adjacent to, a crosswalk. Since it was undisputed that plaintiff looked in the direction of oncoming traffic before stepping off the curb, and the truck struck her while backing up (i.e., moving in a direction from which no traffic would be expected), she was not guilty of contributory negligence. (Kupperberg v American Druggists Syndicate, 212 App Div 311; Enstrom v Neumoegen, 126 NYS 660; cf., Vescio v Silverman, 20 Misc 2d 876.)

The testimony of plaintiff and her experts supported the jury’s determination that she suffered a "serious injury” within the meaning of Insurance Law § 5102 (d). We do not find the verdict, based on a torn rotator cuff of the shoulder, excessive (see, May v European Health Spas, 103 AD2d 1032; compare, Gonzalez v Manhattan & Bronx Surface Tr. Operating Auth., 160 AD2d 420). Concur—Kupferman, J. P., Sullivan, Ross, Ellerin and Rubin, JJ.