Faith Kaminsky, Plaintiff-Appellant, v. M.T.A. New York City Transit Authority, et al., Defendants-Respondents. (2010)

_

Order, Supreme Court, New York County (Harold B. Beeler, J.), entered November 5, 2009, which, in an action for personal injuries, denied plaintiff's motion for partial summary judgment on the issue of liability, unanimously affirmed, without costs.

Plaintiff, a pedestrian, was struck by defendants' left-turning bus while crossing the street within the crosswalk at a controlled intersection.   The traffic light was in plaintiff's favor at the time of the accident.   Nevertheless, plaintiff's claim that she had the right of way hinges upon whether or not the bus was in motion when she stepped into the crosswalk (see e.g. Fannon v Metropolitan Transp.   Auth., 133 A.D.2d 211 [1987] see also Brito v Manhattan & Bronx Surface Tr. Operating Auth., 188 A.D.2d 253 [1992], appeal dismissed 81 N.Y.2d 993 [1993] ).   In this regard, the bus operator testified that upon making his turn he scanned the intersection, checked his side-view mirror and observed no pedestrians crossing the street.   This testimony was sufficient to raise a triable issue of fact as to whether plaintiff had the right of way when the accident occurred.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

_

CLERK