Marte v. City of New York

Feb 28, 2012
Versions:92 A.D.3d 618
939 N.Y.2d 401

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, 91 AD3d 468, 468-469 [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 [2011], citing Powell v HIS Contrs., Inc., 75 AD3d 463, 465 [2010]).

We have considered plaintiff‘s remaining contentions and find them unavailing. Concur—Mazzarelli, J.P., Andrias, Catterson, Abdus-Salaam and Manzanet-Daniels, JJ.