| Brenner v Dixon |
| 2012 NY Slip Op 06409 [98 AD3d 1246] |
| September 28, 2012 |
| Appellate Division, Fourth Department |
| Stewart M. Brenner et al., Appellants, v William J. Dixon,Respondent. |
—[*1] Baxter Smith & Shapiro, P.C., West Seneca (Arthur Smith of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), enteredSeptember 8, 2011 in a personal injury action. The order granted the motion of defendant for adirected verdict and dismissed the complaint.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs, defendant's motion for a directed verdict is denied, the complaint is reinstated anda new trial is granted.
Memorandum: Plaintiffs commenced this action seeking damages for injuries that StewartM. Brenner (plaintiff) sustained when the bicycle he was riding was struck by a vehicle operatedby defendant. Prior to the accident, both plaintiff and defendant were traveling south on YoungsRoad, a two-lane roadway in the Town of Amherst. Plaintiff was riding his bicycle on the rightshoulder of the road, and defendant was operating his vehicle on the roadway behind and to theleft of plaintiff. The accident occurred near the intersection of Youngs Road and RenaissanceDrive, which is not controlled by a stop sign or other traffic-control device. While plaintiff wasin the process of turning left onto Renaissance Drive, defendant's vehicle struck the rear tire ofplaintiff's bicycle, causing plaintiff to be thrown from the bicycle. On appeal, plaintiffs contendthat Supreme Court erred in granting defendant's motion to dismiss the complaint pursuant toCPLR 4401 at the close of plaintiffs' case. We agree.
It is well settled that "a directed verdict is 'appropriate where the . . . court findsthat, upon the evidence presented, there is no rational process by which the fact trier could base afinding in favor of the nonmoving party' " (Bennice v Randall, 71 AD3d 1454, 1455 [2010], quotingSzczerbiak v Pilat, 90 NY2d 553, 556 [1997]; see Matter of Radisson Community Assn., Inc. v Long, 28 AD3d88, 90 [2006]). In determining whether to grant a motion for a directed verdict pursuant toCPLR 4401, "the trial court must afford the party opposing the motion every inference whichmay properly be drawn from the facts presented, and the facts must be considered in a light mostfavorable to the nonmovant" (Szczerbiak, 90 NY2d at 556; see Radisson CommunityAssn., Inc., 28 AD3d at 90). Often, "the better practice is to submit the case to the jurywhich, in some instances, may obviate defendant's CPLR 4401 motion by returning a defendant'sverdict" (Rosario v City of New York, 157 AD2d 467, 472 [1990]; see Jacino v Sugerman, 10 AD3d593, 594-595 [2004]). Here, accepting plaintiff's testimony as true and affording plaintiffsevery favorable inference that may reasonably be drawn from the facts presented at trial (seeMurphy v Kendig, 295 AD2d 946, 947 [2002]; Nicholas v Reason, 84 AD2d 915,915 [1981]), we conclude that there is a "rational process by which the [jury] could [have]base[d] a finding in favor of [plaintiffs]" (Szczerbiak, 90 NY2d at 556). In support of hismotion for a directed verdict, defendant contended that the accident was caused solely byplaintiff's negligence in, inter alia, failing to signal the left turn or to yield the right-of-way todefendant. With a few exceptions that are not relevant here, "a person riding a bicycle on aroadway is entitled to all of the rights and bears all of the responsibilities of a driver of a motorvehicle" (Palma v Sherman, 55AD3d 891, 891 [2008]; see Vehicle and Traffic Law § 1231). Vehicle andTraffic Law § 1163 (a) requires vehicles to signal before turning at an intersection, andsection 1237 specifies the signal to be used by bicyclists when making a left turn (see§ 1237 [1]). Here, plaintiff admitted that he did not signal before making his left turn.
Nonetheless, we conclude that plaintiffs submitted sufficient proof of negligence on the partof defendant to survive a CPLR 4401 motion (see generally Leahy v Kontos, 112 AD2d356, 357 [1985]). Vehicle and Traffic Law § 1146 (a) provides that, "[n]otwithstanding theprovisions of any other law to the contrary, every driver of a vehicle shall exercise due care toavoid colliding with any bicyclist . . . upon any roadway and shall give warning bysounding the horn when necessary." "In general, a motorist is required to keep a reasonablyvigilant lookout for bicyclists" (Palma, 55 AD3d at 891).
Here, plaintiffs submitted photographs establishing that the portion of Youngs Road wherethe collision occurred is straight, with a wide paved shoulder, and plaintiff testified at trial that,prior to making his left turn, he looked behind him and saw defendant's vehicle "well downYoungs Road." Thus, a trier of fact could reasonably infer that defendant likewise should havebeen able to see plaintiff's bicycle at that time, given the straight nature of the roadway on whichthe accident occurred. Plaintiff also testified that he began his turn from the right shoulder of theroadway and had reached or nearly reached the double yellow center line dividing the north andsouth lanes when the left front corner of defendant's vehicle struck his rear bicycle tire. At aboutthe same time that the collision occurred, plaintiff heard the horn of a vehicle. The fact thatplaintiff had crossed the southbound lane from the shoulder before defendant collided with therear wheel of plaintiff's bicycle suggests that defendant had time to observe plaintiff's movementand react thereto by, inter alia, sounding the horn of his vehicle, swerving, or braking beforeimpact. Plaintiff, however, testified that he did not hear the horn until the time of impact and didnot hear the vehicle skidding. We thus conclude that there is a "rational process by which the[jury] could [have found]" that defendant was negligent (Szczerbiak, 90 NY2d at 556),i.e., that defendant violated his "statutory duty to use due care to avoid colliding with [plaintiff]on the roadway . . . , as well as [his] common-law duty to see that which he shouldhave seen through the proper use of his senses" (Barbieri v Vokoun, 72 AD3d 853, 856 [2010]).
We therefore reverse the order, deny defendant's motion, reinstate the complaint, and grant anew trial. Present—Scudder, P.J., Smith, Centra, Fahey and Peradotto, JJ.