Lariviere v. N.Y. City Transit Auth.

• Decision Date: 29 March 2011
• Parties: Leslie Karen LARIVIERE, appellant-respondent,v.NEW YORK CITY TRANSIT AUTHORITY, respondent-appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

82 A.D.3d 1165
920 N.Y.S.2d 231
2011 N.Y. Slip Op. 02631

Leslie Karen LARIVIERE, appellant-respondent,
v.
NEW YORK CITY TRANSIT AUTHORITY, respondent-appellant, et al., defendants.

Supreme Court, Appellate Division, Second Department, New York.

March 29, 2011.

[920 N.Y.S.2d 232]

Ronemus & Vilemsky, New York, N.Y. (Michael B. Ronemus and Susan J. Kerker of counsel), for appellant-respondent.Wallace D. Gossett, Brooklyn, N.Y. (Lawrence Heisler of counsel), for respondent-appellant.DANIEL D. ANGIOLILLO, J.P., ANITA R. FLORIO, JOHN M. LEVENTHAL, and ROBERT J. MILLER, JJ.

[82 A.D.3d 1165] In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Sherman, J.), dated [82 A.D.3d 1166] March 10, 2010, as denied those branches of her motion which were pursuant to General Municipal Law § 50–e(6) and CPLR 3025(b) for leave to amend her notice of claim and complaint, respectively, to assert a derivative cause of action to recover for loss of services on behalf of her husband, nonparty John David Lariviere, and the defendant New York City Transit Authority cross-appeals, as limited by its brief, from so much of the same order as granted that branch of the plaintiff's motion which was for summary judgment against it on the issue of liability.

ORDERED that the order is reversed insofar as appealed from, on the facts and as a matter of discretion, and those branches of the plaintiff's motion which were pursuant to General Municipal Law § 50–e(6) and CPLR 3025(b) for leave to amend her notice of claim and complaint, respectively, are granted; and it is further,

ORDERED that the order is affirmed insofar as cross-appealed from by the defendant New York City Transit Authority; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The plaintiff pedestrian was crossing the street within a crosswalk with the traffic light and pedestrian crossing signal in her favor when she was struck by a bus operated by the defendant New York City Transit Authority (hereinafter the NYCTA), as it was making a left turn. The NYCTA did not deny that the plaintiff was within the crosswalk and had the traffic and pedestrian signals in her favor at the time of the accident. The evidence submitted by the plaintiff established that, as a matter of law, the defendant driver violated the Traffic Rules and Regulations of the City of New York (34 RCNY) § 4–03(a)(1)(i)...