KAPITANOVA v. RAFAELI (2005)

Supreme Court, Appellate Division, First Department, New York.

Nina KAPITANOVA, Plaintiff-Appellant, v. Luba RAFAELI, Defendant-Respondent.

Decided: March 01, 2005

BUCKLEY, P.J., TOM, SAXE, FRIEDMAN, SWEENY, JJ.

Norman Perlman, Garden City, for appellant. Russo, Keane & Toner, LLP, New York (Claire Rush of counsel), for respondent.

Order, Supreme Court, New York County (R. Bruce Cozzens, Jr., J. and a jury), entered October 6, 2003, upon jury verdict, dismissing the complaint in an action for personal injuries sustained when plaintiff was struck by a cab driven by the decedent and co-owned by the decedent and defendant, unanimously affirmed, without costs.

The verdict is supported by the weight of the evidence showing that the accident was caused by a sudden, unforeseeable fatal heart attack suffered by the decedent just before his cab hit plaintiff (see McGinn v. New York City Tr. Auth., 240 A.D.2d 378, 379, 658 N.Y.S.2d 121 [1997] ).

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