KAROON v. NEW YORK CITY TRANSIT AUTHORITY

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

Kayvan KAROON, Plaintiff-Appellant, v. NEW YORK CITY TRANSIT AUTHORITY, et al., Defendants-Respondents.

Decided: September 27, 2001

ROSENBERGER, J.P., MAZZARELLI, ELLERIN, SAXE and BUCKLEY, JJ. Katherine Herr Solomon, for Plaintiff-Appellant. Lawrence Heisler, for Defendants-Respondents.

Order, Supreme Court, New York County (Joan Madden, J.), entered on or about February 23, 2000, which denied plaintiff's motion for an order setting aside the verdict and ordering a new trial, unanimously affirmed, without costs.

 The jury heard conflicting evidence as to the speed at which plaintiff had been traveling, the lane in which he had been traveling, his state of intoxication, the distance that his motorcycle had been from the intersection when the bus driver had seen him, and the bus driver's sight lines.   Since the jury, fairly interpreting the evidence, could have found that the bus driver did not violate the Vehicle and Traffic Law, a new trial would not be appropriate (see, Olson v. Dougherty, 128 A.D.2d 920, 921-922, 512 N.Y.S.2d 730).   The trial court acted within its discretion (see, Ginsberg v. New York Prop. Ins. Underwriting Assn., 210 A.D.2d 130, 131, 620 N.Y.S.2d 52) in permitting the defense medical expert to testify within specific limits on the intoxication issue, and, as the trial court found, under the unique circumstances of this case, plaintiff was not prejudiced by the lack of full compliance CPLR 3101(d)(1)(i) (see, e.g., McDermott v. Alvey, Inc., 198 A.D.2d 95, 603 N.Y.S.2d 162).   The report of a MABSTOA superintendent based on standards higher than those imposed on defendant by the common law was properly excluded from evidence (see, Ramirez v. Manhattan & Bronx Surface Tr. Operating Auth., 258 A.D.2d 326, 327, 685 N.Y.S.2d 207, lv. denied 93 N.Y.2d 817, 697 N.Y.S.2d 564, 719 N.E.2d 925).