Kaminsky v M.T.A. N.Y.C. Tr. Auth.

Kaminsky v M.T.A. N.Y. City Tr. Auth. 2010 NY Slip Op 08848 [79 AD3d 411] December 2, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 16, 2011

Faith Kaminsky, Appellant,
v
M.T.A. New York City Transit Authority et al., Respondents.

—[*1] Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz, New York (Howard S. Hershenhorn of counsel), for appellant.

Wallace D. Gossett, Brooklyn (Lawrence Heisler of counsel), for respondents.

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 AD2d 211 [1987]; see also Brito v Manhattan & Bronx Surface Tr. Operating Auth., 188 AD2d 253 [1992], appeal dismissed 81 NY2d 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. Concur—Andrias, J.P., Nardelli, Catterson, DeGrasse and Manzanet-Daniels, JJ.