Marte v City of New York

Marte v City of New York 2012 NY Slip Op 01510 Decided on February 28, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 28, 2012
Mazzarelli, J.P., Andrias, Catterson, Abdus-Salaam, Manzanet-Daniels, JJ.
6933 101769/09

[*1]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.

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, __ AD3d __,__, 2012 NY Slip Op 00110, *1 [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 AD3d 460, 460 [2011]), citing Powell v HIS Contrs., Inc., 75 AD3d 463, 465 [2010]).

We have considered plaintiff's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 28, 2012

CLERK