| Kaminsky v M.T.A. N.Y. City Tr. Auth. |
| 2010 NY Slip Op 08848 [79 AD3d 411] |
| December 2, 2010 |
| Appellate Division, First Department |
| Faith Kaminsky, Appellant, v M.T.A. New York City TransitAuthority et al., Respondents. |
—[*1] Wallace D. Gossett, Brooklyn (Lawrence Heisler of counsel), for respondents.
Order, Supreme Court, New York County (Harold B. Beeler, J.), entered November 5, 2009,which, in an action for personal injuries, denied plaintiff's motion for partial summary judgment on theissue of liability, unanimously affirmed, without costs.
Plaintiff, a pedestrian, was struck by defendants' left-turning bus while crossing the street within thecrosswalk at a controlled intersection. The traffic light was in plaintiff's favor at the time of the accident.Nevertheless, plaintiff's claim that she had the right-of-way hinges upon whether or not the bus was inmotion when she stepped into the crosswalk (see e.g. Fannon v Metropolitan Transp. Auth.,133 AD2d 211 [1987]; see also Brito v Manhattan & Bronx Surface Tr. Operating Auth., 188AD2d 253 [1992], appeal dismissed 81 NY2d 993 [1993]). In this regard, the bus operatortestified that upon making his turn he scanned the intersection, checked his side-view mirror andobserved no pedestrians crossing the street. This testimony was sufficient to raise a triable issue of factas to whether plaintiff had the right-of-way when the accident occurred. Concur—Andrias, J.P.,Nardelli, Catterson, DeGrasse and Manzanet-Daniels, JJ.