Sullivan Papain Block McGrath & Cannavo, P.C., New York,
NY (Brian J. Shoot, Joel H. Robinson, and Andrew M. Laskin of
counsel), for appellant.
& Rees, LLP, Harrison, NY (Lorie Valletta of counsel),
for respondents County of Westchester and Westchester County
Department of Transportation.
Ryan & Downes, LLP (Carol R. Finocchio, New York, NY, of
counsel), for respondents Liberty Lines Transit, Inc., and
WILLIAM F. MASTRO, J.P. JOHN M. LEVENTHAL BETSY BARROS
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
action to recover damages for personal injuries, the
plaintiff appeals from a judgment of the Supreme Court,
Westchester County (Connolly, J.), dated November 6, 2014,
which, upon a jury verdict on the issue of liability, and
upon the denial of her motion pursuant to CPLR 4404(a) to set
aside the verdict as contrary to the weight of the evidence
and for a new trial, is in favor of the defendants and
against her, in effect, dismissing the complaint.
that the judgment is affirmed, with one bill of costs.
plaintiff was injured by a public bus while attempting to
cross a street in Mount Vernon, Westchester County. At the
trial on the issue of liability, some witnesses testified
that the plaintiff entered the roadway in the crosswalk when
the bus hit her in the course of making a left turn. Other
witnesses testified that the plaintiff entered the roadway in
a rush from underneath scaffolding some distance from the
crosswalk while holding an open umbrella that may have
obscured her view of oncoming traffic, and walked into the
bus. A video recording from inside the bus entered into
evidence during trial did not provide a view of the plaintiff
until after the accident, supporting and undercutting some
aspects of both narratives. The jury rendered a verdict in
favor of the defendants, finding that the defendant bus
driver was not negligent. The plaintiff moved pursuant to
CPLR 4404(a) to set aside the verdict as contrary to the
weight of the evidence and for a new trial. The Supreme Court
denied the motion and entered a judgment in favor of the
defendants and against her, in effect, dismissing the
complaint. The plaintiff appeals.
jury verdict should not be set aside as contrary to the
weight of the evidence unless the jury could not have reached
the verdict by any fair interpretation of the evidence"
(Barbieri v Vokoun, 72 A.D.3d 853, 855; see
Lolik v Big V Supermarkets, 86 N.Y.2d 744, 746;
Rivera v Motor Vehicle Accident Indemnification
Corp., 119 A.D.3d 540, 541; Seong Yim Kim v New York
City Tr. Auth., 87 A.D.3d 531, 532). "It is within
the province of the jury to determine issues of credibility,
and great deference is accorded to the jury given its
opportunity to see and hear the witnesses" (Seong
Yim Kim v New York City Tr. Auth., 87 A.D.3d at 532).
Here, the jury's verdict was based on a fair
interpretation of the evidence (see Gangadeen v
Roman, 137 A.D.3d 1211, 1212; Agui v Fernandez,
113 A.D.3d 645, 645-646; Seong Yim Kim v New York City
Tr. Auth., 87 A.D.3d at 531-533; Collazo v
Metropolitan Bus Auth., 68 A.D.3d 803, 803-804;
Singh v New York City Tr. Auth., 143 A.D.2d 1001,
to the plaintiff's contention, the Supreme Court properly
excluded a report generated by the defendant Liberty Lines
Transit, Inc., during the course of a disciplinary process
related to the accident containing alleged admissions. A
statement by an agent who has no authority to speak for the
principal does not fall within the "speaking agent"
exception to the rule against hearsay "even where the
agent was authorized to act in the matter to which [the]
declaration relates" (Simpson v New York City Tr.
Auth., 283 A.D.2d 419; see Alvarez v First Natl.
Supermarkets, Inc., 11 A.D.3d 572, 574). The burden is
on the proponent of such evidence to establish its
admissibility (see Tyrrell v Wal-Mart Stores, Inc.,
97 N.Y.2d 650, 652). Since the plaintiff failed to adduce any
evidence as to the speaking authority of the declarant, the
report was not admissible (see Rodriguez v New York City
Tr. Auth., 118 A.D.3d 618, 619; Aquino v Kuczinski,
Vila & Assocs., P.C., 39 A.D.3d 216, 220-221;
Alvarez v First Natl. Supermarkets, Inc., 11 A.D.3d
at 572-573; Simpson v New York City Tr. Auth., 283
A.D.2d at 419).
the Supreme Court properly sustained the defendants'
objections to the improper comments of the plaintiff's
attorney during summation and corrected any possible
prejudice by issuing curative instructions (see Jackson v
County of Sullivan, 232 A.D.2d 954, 955-956; People
v Davis, 128 A.D.2d 800).
parties' remaining contentions either need not be reached
in light of our ...