| Collazo v Metropolitan Suburban Bus Auth. |
| 2009 NY Slip Op 09179 [68 AD3d 803] |
| December 8, 2009 |
| Appellate Division, Second Department |
| Joehau Collazo, Respondent, v Metropolitan SuburbanBus Authority et al., Appellants, et al., Defendants. |
—[*1] Crafa & Sofield, P.C., Rockville Centre, N.Y. (Joseph R. Crafa of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants Metropolitan SuburbanBus Authority, Metropolitan Transportation Authority/Long Island Bus Company, and Manna R.Ramkissoon appeal from an order of the Supreme Court, Nassau County (Winslow, J.), enteredDecember 10, 2008, which granted the plaintiff's motion pursuant to CPLR 4404 (a) to set asidea jury verdict in their favor on the issue of liability, and for a new trial.
Ordered that the order is affirmed, with costs.
The plaintiff moved to set aside a jury verdict in favor of the appellants on the issue ofliability on two grounds. The first ground was that the verdict was contrary to the weight of theevidence. The second was that the jury verdict should be set aside in the interest of justicebecause the court erred in instructing the jury that if it found the appellant bus driver Manna R.Ramkissoon violated New York City Traffic Regulations (34 RCNY) § 4-03 (a) (3), itcould consider such violation some evidence of negligence, while also instructing the jury that afinding that Ramkissoon violated Vehicle and Traffic Law § 1111 (d) (1) constitutednegligence. The Supreme Court granted the motion on the ground that the verdict was contraryto the weight of the evidence, but rejected the plaintiff's challenge to the jury instructions.
The Supreme Court erred in setting aside the verdict as contrary to the weight of theevidence. A fair interpretation of the evidence supported the jury verdict in favor of theappellants on the issue of liability (see Lolik v Big V Supermarkets, 86 NY2d 744[1995]; Nicastro v Park, 113 AD2d 129 [1985]). The conflicting versions of the accidentpresented by the parties at trial raised a question for the jury to resolve, and, as the jury had theopportunity to hear and observe the witnesses, we accord great deference to the jurydetermination to credit Ramkissoon's testimony that he did not proceed against a red light (see Wahid v Long Is. R.R. Co., 59AD3d 712, 713 [2009]; Ahr vKarolewski, 48 AD3d 719 [2008]). Moreover, there was ample evidence adduced attrial from which the jury could have reasonably found that the accident did not occur at acrosswalk, and that the plaintiff's actions in [*2]crossing theroadway outside of a crosswalk when it was impossible to yield was the sole proximate cause ofthe accident (see Ahr v Karolewski,48 AD3d 719 [2008]; Campbell v Crimi, 267 AD2d 343 [1999]).
However, the court's instructions to the jury that a violation of the New York City TrafficRegulations (34 RCNY) § 4-03 (a) (3) could be considered some evidence of negligence,while a violation of Vehicle and Traffic Law § 1111 (d) (1) constitutes negligence, wasconfusing, given that the regulation and statute are essentially consistent, and warranted settingaside the verdict and granting a new trial (see Franco v Zingarelli, 72 AD2d 211,216-217 [1980]). In the absence of express statutory language providing that a local regulationcontrols over a state statute, and where, as here, the regulation and statute are essentiallyconsistent with each other, the statute controls (see McKinney's Cons Laws of NY, Book1, Statutes § 74; cf. Vehicle and Traffic Law § 1642). Moreover, a violationof a state statute constitutes negligence as a matter of law (see Fox v Lyte, 143 AD2d390, 392 [1988]; Rodriguez v Cato, 63 AD2d 922, 923 [1978]; Piarulli v Lason,35 AD2d 605 [1970]). Therefore, the Supreme Court should have granted that branch of theplaintiff's motion which was to set aside the jury verdict in the interest of justice and, at the newtrial, the trial court should instruct the jury that a finding that Ramkissoon violated Vehicle andTraffic Law § 1111 (d) (1) constitutes negligence and should not make any reference toNew York City Traffic Regulations (34 RCNY) § 4-03 (a) (3). Mastro, J.P., Belen, Halland Austin, JJ., concur. [Prior Case History: 2008 NY Slip Op 33391(U).]