Rivas v New York City Tr. Auth.

Rivas v New York City Tr. Auth. 2013 NY Slip Op 00694 Decided on February 5, 2013 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 5, 2013
Friedman, J.P., DeGrasse, Richter, Abdus-Salaam, Feinman, JJ.
9161 13185/07

[*1]Pedro J. Rivas, Plaintiff-Respondent,

v

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




Wallace D. Gossett, Brooklyn (Lawrence A. Silver of counsel),
for appellants.
Sullivan Papain Block McGrath & Cannavo P.C., New York
(Brian J. Shoot of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Kenneth L. Thompson, J.), entered June 21, 2011, after a jury trial, to the extent appealed from, apportioning fault 70% to defendants and 30% to plaintiff, unanimously reversed, on the law, without costs, and the matter remanded for a new trial on the issue of apportionment of fault.

The jury poll revealed that four out of the six jurors claimed that they did not vote for the apportionment percentages stated in the verdict sheet (see Duffy v Vogel, 12 NY3d 169, 174 [2009], citing Warner v New York Cent. R.R. Co., 52 NY 437, 442 [1873]). Thereafter, the trial court discharged the jury prior to resolving the contradiction between the verdict sheet read into the record and the results of the jury poll (see National Equip. Corp. v Ruiz, 19 AD3d 5, 12-13 [1st Dept 2005]). Accordingly, a new trial is required on the issue of apportionment of fault.

The trial court did not err in permitting the jury to hear evidence suggesting that the bus driver may have violated Transit Authority rules by not sounding his horn to alert plaintiff, a bicyclist, of the presence of the bus. This evidence is admissible since the subject rules do not impose a standard of care transcending that imposed by common law or the applicable provisions of the Vehicle and Traffic Law (see Lopez v New York City Tr. Auth., 60 AD3d 529, 531 [1st Dept 2009], lv denied 13 NY3d 717 [2010]; see also Vehicle and Traffic Law § 1146[a]).

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

ENTERED: FEBRUARY 5, 2013

CLERK