        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

16
CA 13-00842
PRESENT: SCUDDER, P.J., SMITH, CENTRA, CARNI, AND WHALEN, JJ.


DANIEL C. ANTHONY, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

BRENT M. PHELPS, DEFENDANT-RESPONDENT.


GREENE & REID, PLLC, SYRACUSE (EUGENE W. LANE OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

GORIS & O’SULLIVAN, LLC, CAZENOVIA (MARK D. GORIS OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Jefferson County
(Hugh A. Gilbert, J.), entered October 4, 2012 in a personal injury
action. The judgment, inter alia, ordered that a judgment of no cause
of action be entered.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law without costs and a new trial is
granted.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he sustained while attempting to avoid a collision between
the motorcycle he was driving and the vehicle driven by defendant.
Supreme Court denied plaintiff’s motion for a directed verdict at the
close of his proof and, following the jury’s verdict of no cause of
action, the court denied plaintiff’s posttrial motion to set aside the
verdict as against the weight of the evidence.

     We reject plaintiff’s contention that the court erred in denying
his motion for a directed verdict on the issue of defendant’s
negligence. Viewing the evidence in the light most favorable to the
nonmoving party, as we must, we conclude that the court properly
determined that there was a “rational process by which the fact trier
could base a finding in favor of [defendant]” (Szczerbiak v Pilat, 90
NY2d 553, 556; see Bennice v Randall, 71 AD3d 1454, 1455).

     We agree with plaintiff, however, that the court erred in denying
his request to instruct the jury pursuant to Vehicle and Traffic Law §
1142 (a), and we therefore reverse the judgment and grant a new trial.
Pursuant to that section, defendant was obligated to yield the right-
of-way “to any vehicle which has entered the intersection from another
highway or which is approaching so closely on said highway as to
constitute an immediate hazard during the time when such driver is
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                                                        CA 13-00842

moving across or within the intersection” (id.; see PJI 2:80). The
accident here occurred at an intersection, and the jury should have
been instructed on the statutory standard of care in determining
whether defendant failed to yield the right-of-way and thus was
negligent (see Doyle v Olin’s Leasing Corp., 73 AD2d 634, 635).




Entered:   February 7, 2014                    Frances E. Cafarell
                                               Clerk of the Court
