Elizabeth Rosario v Robert Morias

Rosario v Morias 2004 NY Slip Op 05148 [8 AD3d 108] June 15, 2004 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 25, 2004

Elizabeth Rosario, Appellant,
v
Robert Morias, Respondent.

—[*1]

Judgment, Supreme Court, Bronx County (Jerry L. Crispino, J.), entered on or about March 31, 2003, which, upon jury verdict, dismissed the complaint on the merits, unanimously affirmed, without costs.

Plaintiff was crossing the street in the middle of the block, emerging from between two parked vehicles, when she was struck by defendant's automobile. She testified that she looked before crossing, saw the light was red and did not see any cars moving. Defendant stated that he did not see the five-foot-tall plaintiff until one second before the accident. The trial court properly charged the jury with the emergency doctrine. A reasonable view of the evidence indicates that defendant was suddenly and unexpectedly presented with plaintiff's appearance, and that he stopped immediately upon impact. The issue of whether or not this was an emergency situation was properly presented to the jury for resolution (Kuci v Manhattan & Bronx Surface Tr. Operating Auth., 88 NY2d 923 [1996]). The verdict was not against the weight of the evidence. Conflicting testimony presented issues of credibility for the jury to resolve, and plaintiff has offered nothing to warrant disturbing the verdict. Finally, plaintiff was not prejudiced by the court's ruling with respect to judicial notice of certain speed and distance calculations since her counsel was permitted on summation to challenge defendant's version of the accident based upon speed and distance calculations. Concur—Mazzarelli, J.P., Andrias, Sullivan, Lerner and Gonzalez, JJ.