Santos-Lopez v. Metropolitan Transit Authority

85 A.D.3d 512, 925 N.Y.S.2d 57

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 14, 2011
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (Stanley B. Green, J.), entered on or about May 10, 2010, upon a jury verdict finding defendants 100% liable for the infant plaintiffs injuries, unanimously affirmed, without costs.

The jury’s finding that defendants were 100% responsible for the accident was not against the weight of the evidence (see Gilliam v Vasilis, 225 AD2d 509 [1996]). Although the bus driver’s testimony that he had a green light was supported by his contemporaneous accident reports and the police officer’s testimony that the infant plaintiff said he jumped in front of the bus, thinking it would stop, the jury was free to reject the driver’s testimony, in part of in whole (see McDermott v Coffee Beanery, Ltd,., 9 AD3d 195, 210 [2004, Saxe, J., concurring]; PJI 1:37). Both the infant plaintiff and a nonparty witness, another pedestrian in the same crosswalk, testified that the infant plaintiff had the right of way.

The trial court properly refused to charge the emergency doctrine since a pedestrian’s appearance in a crosswalk is a situation that a driver should anticipate and be prepared to deal with (Hart v Town of N. Castle, 305 AD2d 543 [2003]). Concur— Saxe, J.P., Acosta, DeGrasse, Abdus-Salaam and ManzanetDaniels, JJ.