Francis v. New York City Transit Authority

237 A.D.2d 107, 654 N.Y.S.2d 742, 1997 N.Y. App. Div. LEXIS 2117

Opinion

—Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered on or about June 19, 1996, which granted plaintiffs motion to set aside the verdict and directed a new trial, unanimously affirmed, without costs.

Defendants’ bus driver’s awareness of the presence of the car ahead for at least 15 seconds and for over a block and a half precludes a finding that the action of the car in stopping was so sudden and unexpected as to warrant an emergency doctrine charge (see, Rivera v New York City Tr. Auth., 77 NY2d 322, 327). In view of the trial court’s prior correct decision rejecting defendants’ request for an emergency doctrine charge, it was error not to recharge the jury once a modified version of that doctrine was charged due to inadvertent error. Furthermore, the verdict in favor of defendants was properly set aside as against the weight of the evidence in view of the bus driver’s admission that, although he was aware of the presence of the car for over a block and a half, he looked away and noticed brake lights only after the car was completely stopped, resulting in his having to suddenly brake to avoid a collision. Concur—Rosenberger, J. P., Ellerin, Tom and Mazzarelli, JJ.