PROVENZANO v. CITY OF NEW YORK (2001)

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.

 Plaintiff's posttrial motion for judgment notwithstanding 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 plaintiff's foot.   There is nothing about this evidence, or anything else in the record, that necessarily requires a finding that defendant was negligent in misinterpreting plaintiff's 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 N.Y.2d 493, 498-499, 410 N.Y.S.2d 282, 382 N.E.2d 1145).   There is no merit to plaintiff's argument that res ipsa loquitur should have been charged (see, Lee v. Bonavita, 216 A.D.2d 8, 627 N.Y.S.2d 373).