Kaminsky v. M.T.A. New York City Transit Authority

79 A.D.3d 411, 911 N.Y.S.2d 698

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 2, 2010
• Status: Published

Opinion

Order, Supreme Court, New York County (Harold B. Beeler, J.), entered November 5, 2009, which, in an action for personal injuries, denied plaintiffs motion for partial summary judgment on the issue of liability, unanimously affirmed, without costs.

Plaintiff, a pedestrian, was struck by defendants’ left-turning bus while crossing the street within the crosswalk at a controlled intersection. The traffic light was in plaintiffs favor at the time of the accident. Nevertheless, plaintiffs claim that she had the right:of-way hinges upon whether or not the bus was in motion when she stepped into the crosswalk (see e.g. Fannon v Metropolitan Transp. Auth., 133 AD2d 211 [1987]; see also Brito v Manhattan & Bronx Surface Tr. Operating Auth., 188 AD2d 253 [1992], appeal dismissed 81 NY2d 993 [1993]). In this regard, the bus operator testified that upon making his turn he scanned the intersection, checked his side-view mirror and observed no pedestrians crossing the street. This testimony was sufficient to raise a triable issue of fact as to whether plaintiff had the right-of-way when the accident occurred. Concur— Andrias, J.P, Nardelli, Catterson, DeGrasse and Manzanet Daniels, JJ.