Opinion
06-07-2016
Suyapa QUINN, Plaintiff–Respondent, v. The NEW YORK CITY TRANSIT AUTHORITY, et al., Defendants–Appellants.
Lawrence Heisler, Brooklyn (Anna J. Ervolina of counsel), for appellants. Peña & Kahn, PLLC, Bronx (Gary Axisa of counsel), for respondent.
Lawrence Heisler, Brooklyn (Anna J. Ervolina of counsel), for appellants.
Peña & Kahn, PLLC, Bronx (Gary Axisa of counsel), for respondent.
Judgment, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered March 26, 2014, awarding plaintiff damages upon a jury verdict apportioning liability 60% against defendants New York City Transit Authority and The Manhattan and Bronx Surface Transit Operating Authority (collectively NYCTA) and 40% against nonparty unidentified driver, unanimously affirmed, without costs.
The jury verdict was supported by legally sufficient evidence that the NYCTA driver was negligent in the happening of the accident (see generally Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145 [1978] ). Plaintiff's testimony that the driver was inattentive, and the driver's sudden recall of the accident despite having no memory of it at the time of his deposition, supported the jury determination that the emergency doctrine did not apply.
The trial court erred in including the nonparty unidentified driver on the verdict sheet. Since article 16 did not apply to this motor vehicle accident (see CPLR 1602[6] ), there was no reason for the jury to assess liability between the unknown nonparty driver and the bus driver (see Duffy v. County of Chautauqua, 225 A.D.2d 261, 266–267, 649 N.Y.S.2d 297 [4th Dept.1996], lv. dismissed in part and denied in part 89 N.Y.2d 980, 656 N.Y.S.2d 737, 678 N.E.2d 1353 [1997] ). Nevertheless, the error was harmless, as there was no evidence of jury confusion or a compromise verdict (compare Rivera v. City of New York, 253 A.D.2d 597, 600, 677 N.Y.S.2d 537 [1st Dept.1998] ).
TOM, J.P., SWEENY, MOSKOWITZ, RICHTER, GESMER, JJ., concur.