Opinion
2012-02-28
Narcita G. MARTE, Plaintiff–Appellant, v. The CITY OF NEW YORK, Defendant,New York City Transit Authority, et al., Defendants–Respondents.
Law Offices of Elizabeth Eilender, New York (Norman Frowley of counsel), for appellant. Wallace D. Gossett, Brooklyn (Lawrence Heisler of counsel), for respondents.
Law Offices of Elizabeth Eilender, New York (Norman Frowley of counsel), for appellant. Wallace D. Gossett, Brooklyn (Lawrence Heisler of counsel), for respondents.
MAZZARELLI, J.P., ANDRIAS, CATTERSON, ABDUS–SALAAM, MANZANET–DANIELS, JJ.
Order, Supreme Court, New York County (Michael D. Stallman, J.), entered September 21, 2011, which denied plaintiff's motion for summary judgment on the issue of liability, unanimously affirmed, without costs.
An issue of fact exists as to whether plaintiff had the right-of-way when she was hit by a bus ( see Vehicle and Traffic Law § 1111[a][1]; § 1112[a]; see also Calcano v. Rodriguez, 91 A.D.3d 468, 936 N.Y.S.2d 185, 186 [2012]. Although a nonparty witness asserted in an affidavit that plaintiff “had the green/walk signal and was walking within the crosswalk” when she was hit by the bus, defendant bus driver testified that she was about a car length south of the crosswalk when she was hit. At this procedural posture, the truth of the bus driver's testimony is presumed “where the court's duty is to find issues rather than determine them” ( see Arias v. Skyline Windows, Inc., 89 A.D.3d 460, 460, 931 N.Y.S.2d 870 [2011] ), citing Powell v. HIS Contrs., Inc., 75 A.D.3d 463, 465, 905 N.Y.S.2d 161 [2010] ).
We have considered plaintiff's remaining contentions and find them unavailing.