Chance v Chase
Annotate this CaseDecided on September 17, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2008-1321 K C.
Andrew Chance, Respondent,
against
Edward A. Chase and MARY ELIZABETH FORDE, Appellants.
Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L.
Waltrous, J.), entered May 29, 2008. The order, insofar as appealed from, granted so much of
plaintiff's motion as sought an order setting aside the jury's verdict in favor of defendants and
directing a new trial.
Order, insofar as appealed from, reversed without costs and so much of plaintiff's motion as sought an order setting aside the jury verdict and directing a new trial denied.
Plaintiff commenced this action to recover damages for personal injuries he suffered when his bicycle collided with the rear passenger door of an automobile, owned by defendant Mary Elizabeth Forde and driven by defendant Edward A. Chase, as Chase was making a left turn from Parkside Avenue, a two-way street in Brooklyn, New York, into the crosswalk on Parade Place, which is a one-way street. Plaintiff, who was riding his bicycle home from work, testified that immediately prior to the accident he had been riding his bicycle on the sidewalk that parallels Parkside Avenue; that he was watching the pedestrian traffic signals rather than the traffic signals and that there was a "walk" signal at the time he entered the crosswalk on his bicycle; and that he did not see defendant's automobile until immediately before he made contact with it. Plaintiff stated that he regularly maintained his bicycle brakes, and that he applied them when he saw defendant's car, but did not know if they had held. Plaintiff's bicycle did not have a bell or horn. Chase testified that he had been proceeding at five miles per hour on Parkside Avenue, that as the light changed to green he [*2]slowed down and turned left into Parade Place, and that he did not see plaintiff until immediately prior to the collision, when he unsuccessfully attempted to veer away to avoid a collision.
The jury returned a verdict in favor of defendants, finding that Chase had not been negligent. Plaintiff moved pursuant to CPLR 4404 (a) to set aside the verdict and for judgment in his favor or, in the alternative, for a new trial. The Civil Court granted plaintiff's motion to the extent of setting aside the verdict as against the weight of the evidence and ordering a new trial on the ground that the jury had impermissibly disregarded Chase's violation of the Vehicle and Traffic Law.
A jury verdict should be set aside only if it could not have been reached by any fair interpretation of the evidence (see Nicastro v Park, 113 AD2d 129, 134 [1985]). On this record, we conclude that there was substantial evidence to support the verdict in favor of defendants. As a bicyclist, plaintiff was prohibited from riding on the sidewalk (see Administrative Code of City of NY § 19-176 [6]; see also Traffic Rules and Regulations of City of NY [34 RCNY] § 4-07 [c] [3] [1]), and was subject to all of the duties of a driver of a vehicle (see Vehicle and Traffic Law § 1231). The undisputed evidence was that plaintiff had been riding on the sidewalk, rather than on the road, and that his bicycle was not equipped with a bell, as required by Vehicle and Traffic Law § 1236 (b). From his testimony that he was commuting home from work, a distance of 17 miles which he generally covered in 45 minutes, but that he did not know how fast he was traveling at the time of the accident, the jury could reasonably have concluded that plaintiff was driving at an unsafe speed.
In contrast, Chase testified that he was driving at five miles per hour as he approached the
intersection of Parkside Avenue and Parade Place, and that he slowed down as he turned left into
Parade Place, but nevertheless did not see plaintiff until the instant before plaintiff rode into the
vehicle he was driving. In these circumstances, the jury could reasonably have concluded that
Chase had complied with his statutory and
common law duties of reasonable care, and that plaintiff rode from the sidewalk into
Chase's vehicle at so fast a speed that plaintiff was unable to stop.
In view of the foregoing, we reverse the Civil Court's order, insofar as appealed from, and deny so much of plaintiff's motion as sought an order setting aside the jury verdict and ordering a new trial.
Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: September 17, 2009
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