SALLES v. MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY

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

Stuart SALLES, as Committee for Besse Schneider, an Incompetent Person, Plaintiff-Respondent, v. MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY, Defendant-Appellant.

Decided: May 28, 1998

Before LERNER, P.J., and ELLERIN, RUBIN, TOM and ANDRIAS, JJ. David M. Schuller, for Plaintiff-Respondent. David Samel, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Jerome Gorski, J., and a jury), entered July 28, 1997, insofar as appealed from, finding defendant 100% liable upon retrial (178 A.D.2d 110, 577 N.Y.S.2d 7), and bringing up for review an order, entered January 17, 1997, which denied defendant's motion for an order setting aside the verdict and dismissing the action, or, in the alternative, directing a new trial, unanimously affirmed, without costs.

 Viewing the evidence in the light most favorable to plaintiff, and allowing for the circumstance that she was unable to testify (cf., Noseworthy v. City of New York, 298 N.Y. 76, 80, 80 N.E.2d 744), she has shown “facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred” (Ingersoll v. Liberty Bank, 278 N.Y. 1, 7, 14 N.E.2d 828).   She was well into her crossing of the avenue when defendant's bus driver commenced his turn onto the avenue at a later-than-usual point in the intersection because of a double-parked car.   Such facts, in main part elicited by expert testimony reconstructing the accident on the basis of a reliable police diagram of the positioning of the bus and of plaintiff's body just after the accident, fairly support an inference that plaintiff was observable by the bus driver before he had committed himself to turning right onto the avenue.   The same facts also support an inference that plaintiff could not foresee that the bus would not continue to parallel her path across the avenue, or yield her the right of way through the intersection, and, indeed, on the issue of plaintiff's culpable conduct defendant offers only unsubstantiated assertions that plaintiff was “chargeable with seeing what was there to be seen” (CPLR 1412).   We perceive no error in the court's issuance of a “crosswalk charge”.

MEMORANDUM DECISION.