Marte v. City of New York

Appellate Division of the Supreme Court of New York

Marte v. City of New York

92 A.D.3d 618, 939 N.Y.2d 401

Appellate Division of the Supreme Court of the State of New York·Decided February 28, 2012·Published·Cited by 2 cases

Opinion

An issue of fact exists as to whether plaintiff had the right-of-way when she was hit by a bus (see Vehicle and Traffic Law § 1111 [a] [1]; § 1112 [a]; see also Calcano v Rodriguez, 91 AD3d 468, 468-469 [2012]). Although a nonparty witness asserted in an affidavit that plaintiff “had the green/walk signal and was walking within the crosswalk” when she was hit by the bus, defendant bus driver testified that she was about a car length south of the crosswalk when she was hit. At this procedural posture, the truth of the bus driver’s testimony is presumed “where the court’s duty is to find issues rather than determine them” (see Arias v Skyline Windows, Inc., 89 AD3d 460 [2011], citing Powell v HIS Contrs., Inc., 75 AD3d 463, 465 [2010]).

We have considered plaintiffs remaining contentions and find them unavailing. Concur — Mazzarelli, J.E, Andrias, Catterson, Abdus-Salaam and Manzanet-Daniels, JJ. [Prior Case History: 2011 NY Slip Op 32494(11).]

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An issue of fact exists as to whether plaintiff had the right-of-way when she was hit by a bus (see Vehicle and Traffic Law § 1111 [a] [1]; § 1112 [a]; see also Calcano v Rodriguez, 91 AD3d 468, 468-469 [2012]). Although a nonparty witness asserted in an affidavit that plaintiff “had the green/walk signal and was walking within the crosswalk” when she was hit by the bus, defendant bus driver testified that she was about a car length south of the crosswalk when she was hit. At this procedural posture, the truth of the bus driver’s testimony is presumed “where the court’s duty is to find issues rather than determine them” (see Arias v Skyline Windows, Inc., 89 AD3d 460 [2011], citing Powell v HIS Contrs., Inc., 75 AD3d 463, 465 [2010]).

We have considered plaintiffs remaining contentions and find them unavailing. Concur — Mazzarelli, J.E, Andrias, Catterson, Abdus-Salaam and Manzanet-Daniels, JJ. [Prior Case History: 2011 NY Slip Op 32494(11).]

Marte v. City of New York, 92 A.D.3d 618, 939 N.Y.2d 401 (N.Y. Ct. App. 2012).

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Opinion

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