Provenzano v. City of New York

Appellate Division of the Supreme Court of New York

Provenzano v. City of New York

283 A.D.2d 221, 724 N.Y.S.2d 738, 2001 N.Y. App. Div. LEXIS 4782

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 10, 2001

StatusPublished

This text of 283 A.D.2d 221 (Provenzano v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Provenzano v. City of New York, 283 A.D.2d 221, 724 N.Y.S.2d 738, 2001 N.Y. App. Div. LEXIS 4782 (N.Y. Ct. App. 2001).

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Opinion

—Judgment, Supreme Court, New York County (Robert Lippmann, J., and a jury), entered August 10, 1999, in favor of defendants and against plaintiff, unanimously affirmed, without costs.

Plaintiffs posttrial motion for judgment notwithstanding the verdict or a new trial was properly denied. Evidence at trial showed that plaintiff was guiding the sanitation truck driven by the individual defendant through a difficult turn; that plaintiff signaled defendant intending that he straighten the wheels; that defendant interpreted the signal to mean that he move forward; and that the truck then came into contact with plaintiffs foot. There is nothing about this evidence, or anything else in the record, that necessarily requires a finding that defendant was negligent in misinterpreting plaintiffs signal, or in believing that plaintiff, who was in back of the truck and observable to defendant through the rear view mirror, had stepped away from the truck after signaling it to move. Nor is there any reason to find that the jury gave undue weight to defendant’s version of the accident, or otherwise did not fairly interpret the evidence (see, Cohen v Hallmark Cards, 45 NY2d 493, 498-499). There is no merit to plaintiffs argument that res ipsa loquitur should have been charged (see, Lee v Bonavita, 216 AD2d 8). Concur — Sullivan, P. J., Rosenberger, Tom, Andrias and Marlow, JJ.

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—Judgment, Supreme Court, New York County (Robert Lippmann, J., and a jury), entered August 10, 1999, in favor of defendants and against plaintiff, unanimously affirmed, without costs.

Plaintiffs posttrial motion for judgment notwithstanding the verdict or a new trial was properly denied. Evidence at trial showed that plaintiff was guiding the sanitation truck driven by the individual defendant through a difficult turn; that plaintiff signaled defendant intending that he straighten the wheels; that defendant interpreted the signal to mean that he move forward; and that the truck then came into contact with plaintiffs foot. There is nothing about this evidence, or anything else in the record, that necessarily requires a finding that defendant was negligent in misinterpreting plaintiffs signal, or in believing that plaintiff, who was in back of the truck and observable to defendant through the rear view mirror, had stepped away from the truck after signaling it to move. Nor is there any reason to find that the jury gave undue weight to defendant’s version of the accident, or otherwise did not fairly interpret the evidence (see, Cohen v Hallmark Cards, 45 NY2d 493, 498-499). There is no merit to plaintiffs argument that res ipsa loquitur should have been charged (see, Lee v Bonavita, 216 AD2d 8). Concur — Sullivan, P. J., Rosenberger, Tom, Andrias and Marlow, JJ.

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Bluebook (online)

283 A.D.2d 221, 724 N.Y.S.2d 738, 2001 N.Y. App. Div. LEXIS 4782, Counsel Stack Legal Research, https://law.counselstack.com/opinion/provenzano-v-city-of-new-york-nyappdiv-2001.

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