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Leo OWENS, Respondent, v. CITY OF SYRACUSE, Appellant-Respondent, Florence Arnold, Respondent-Appellant. (Appeal No. 2.)
The jury verdict is not against the weight of the evidence (see generally, Cohen v. Hallmark Cards, 45 N.Y.2d 493, 498, 410 N.Y.S.2d 282, 382 N.E.2d 1145). We reject the contention of defendant City of Syracuse (City) that, because plaintiff Leo Owens and defendant Florence Arnold were familiar with Peat Street, neither the failure of the City to place a center line along the entire length of the street nor its alleged misalignment of the partial center line on the street could be a proximate cause of the accident (see generally, Scheemaker v. State of New York, 125 A.D.2d 964, 510 N.Y.S.2d 359, affd. 70 N.Y.2d 985, 526 N.Y.S.2d 420, 521 N.E.2d 427). We likewise reject the contention of the City that Arnold's action in turning left in front of the motorcycle operated by Owens was the sole proximate cause of the accident, precluding the finding that the City was negligent (see, Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 314-315, 434 N.Y.S.2d 166, 414 N.E.2d 666, rearg. denied 52 N.Y.2d 784, 436 N.Y.S.2d 622, 417 N.E.2d 1010).
The City further contends that Supreme Court erred in permitting plaintiffs' expert to testify that the 85th percentile speed of vehicles traveling on Peat Street exceeded 25 miles per hour. In light of the unchallenged credentials of the expert, we conclude that the court did not abuse its discretion in permitting him to so testify (see, De Long v. County of Erie, 60 N.Y.2d 296, 307, 469 N.Y.S.2d 611, 457 N.E.2d 717). Furthermore, the testimony was properly admitted based on the visit by the expert to the accident site and information he gathered from reviewing transcripts of examinations before trial and documents and photographs relating to the accident (see, Aylesworth v. Evans, 225 A.D.2d 850, 851-852, 638 N.Y.S.2d 982). Given the conclusion of the expert that the 85th percentile speed of vehicles traveling on the street exceeded 25 miles per hour, the court properly allowed him to testify that the City's failure to provide a center line along the entire length of Peat Street violated section 262.2(a) of the New York manual of Uniform Traffic Control Devices (17 NYCRR 262.2[a] ). Based on that expert testimony, the court properly instructed the jury with respect to the provisions of that manual on which plaintiffs relied.
The court erred, however, in failing to structure the judgment of future damages awarded to Owens (see, CPLR 5041[b], [e] ). Thus, we remit the matter to Supreme Court to enter a judgment in conformance with that statute.
Judgment unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings.
MEMORANDUM:
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Decided: February 10, 1999
Court: Supreme Court, Appellate Division, Fourth Department, New York.
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