McAllister v New York City Tr. Auth.

McAllister v New York City Tr. Auth. 2012 NY Slip Op 03712 Decided on May 10, 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 May 10, 2012
Gonzalez, P.J., Saxe, Sweeny, Acosta, Renwick, JJ.
7430 300314/10

[*1]Adrienne McAllister, Plaintiff-Respondent,

v

New York City Transit Authority, et al., Defendants-Appellants.




Gruvman, Giordano & Glaws, LLP, New York (Charles T.
Glaws of counsel), for appellants.
Norman A. Olch, New York, for respondent.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered February 23, 2011, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff pedestrian was struck by a bus driven by defendant Cornett while the bus was making a left turn at an intersection. In support of their motion for summary judgment, defendants submitted Cornett's testimony that he scanned the intersection before making the turn, observed no pedestrians before and while making the turn, turned slowly, stayed in his lane of travel at all times, and had no problems with visibility.

In opposition to the motion, plaintiff's submissions raised triable issues of fact. Although the findings of negligence set forth in the internal investigatory report of defendant Transit Authority were inadmissible, as they were based upon internal standards that impose higher standards than common law (see Karoon v New York City Tr. Auth., 286 AD2d 648, 649 [2001]), the otherwise admissible contents of the report raise triable issues of fact as to Cornett's manner of driving at the time plaintiff was struck.

Such contents show that the rear left tires of the bus protruded into the opposite lane of travel, and that the bus was about 50 feet from the crosswalk. Cornett's deposition testimony, that he was three-quarters of the way through his left turn when plaintiff impacted the left side of the bus, just behind the driver's window, could also support a reasonable inference that plaintiff was near the center of the street, raising issues of fact as to whether Cornett should have seen her. Moreover, plaintiff's expert's review of the admissible contents of the investigatory report, the [*2]deposition testimony, and his personal examination of the intersection, provided a sufficient basis for him to opine that the accident was caused by driver inattentiveness (see Joannis v Cahill, 71 AD3d 1437, 1439 [2010]).

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

ENTERED: MAY 10, 2012

CLERK