In Kim v. New York City Transit, 2011 NY Slip Op 06123 (2d Dept.), the plaintiff, while walking across Roosevelt Avenue in Queens, was hit by a bus owned by the defendant New York City Transit Authority. The plaintiff sued the defendant for negligence, alleging that the defendant failed to yield the right of way to a pedestrian lawfully in a crosswalk at the time a steady green traffic signal was exhibited, and it failed to see what was there to be seen. The case made it to trial, where a jury found the defendant to not be negligent. The plaintiff then made a motion pursuant to CPLR 4404(a) to set aside the jury verdict and for judgment in their favor on the issue of liability or to set aside the verdict as contrary to the weight of the evidence and for a new trial. The Supreme Court granted the motion, but on appeal the Appellate Division denied it.
The motion was denied because the Court felt that there was enough evidence to support the jury’s decision. Particularly, the Court noted the following: the plaintiff testified that she saw the bus in motion before she entered the roadway at a fast pace in order to meet someone nearby; a witness testified that the bus was in the middle of its turn when it struck her; and the bus driver testified that he did not observe any pedestrians upon looking in all directions before proceeding into the intersection, and that the plaintiff was in the street near the rear wheels of his bus immediately after the impact.
The Court stated the following: “a jury verdict should not be set aside as contrary to the weight of the evidence unless ‘the evidence so preponderates in favor of the moving party that the jury could not have reached the verdict by any fair interpretation of the evidence’…it is within the province of the jury to determine issues of credibility, and great deference is accorded to the jury given its opportunity to see and hear the witnesses.”
Salvatore R. Marino, Esq.
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