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

44
CA 10-01207
PRESENT: SCUDDER, P.J., SMITH, LINDLEY, GREEN, AND MARTOCHE, JJ.


LAURIE LONG, AS ADMINISTRATRIX OF THE
ESTATE OF JEREMY HENDERSON, DECEASED,
PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

NIAGARA FRONTIER TRANSPORTATION AUTHORITY,
NIAGARA FRONTIER TRANSIT METRO SYSTEM, INC.,
AND DARON T. CODY, DEFENDANTS-RESPONDENTS.
(APPEAL NO. 1.)


GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (KRISTIN A. TISCI OF COUNSEL),
FOR PLAINTIFF-APPELLANT.

DAVID M. GREGORY, BUFFALO (VICKY-MARIE J. BRUNETTE OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from a judgment of the Supreme Court, Erie County (Paula
M. Feroleto, J.), entered April 13, 2010 in a wrongful death action.
The judgment granted defendants a judgment of no cause of action upon
a jury verdict.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff, as administratrix of the estate of her
adult son (decedent), contends that Supreme Court erred in denying her
motion to set aside the jury verdict of no cause of action as against
the weight of the evidence. We affirm. Decedent was killed when he
was struck by a bus while attempting to cross the street. The bus was
owned by defendant Niagara Frontier Transportation Authority (NFTA),
and operated by defendant DaRon T. Cody, who was employed by NFTA. In
support of her motion to set aside the verdict finding that defendants
were not negligent, plaintiff contended that the evidence at trial
clearly established that Cody was speeding, in violation of Vehicle
and Traffic Law § 1180, and that he failed to sound his horn in a
timely manner, in violation of Vehicle and Traffic Law § 1146.
Although plaintiff is correct that an unexcused violation of the
Vehicle and Traffic Law, if proven, constitutes negligence per se (see
Stalikas v United Materials, 306 AD2d 810, 811, affd 100 NY2d 626), we
cannot agree with plaintiff that the evidence, when viewed in the
light most favorable to defendants (see Greene v Frontier Cent. School
Dist., 214 AD2d 947, 948), establishes that Cody violated the Vehicle
and Traffic Law.
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                                                         CA 10-01207

     With respect to the alleged violation of section 1180, plaintiff
presented no evidence that the bus driver was speeding. Indeed, the
only witness to testify regarding the speed of the bus was a certified
accident reconstructionist who testified for defendants on direct
examination that the bus was traveling at approximately 27 miles per
hour when it struck decedent. The parties agree that the speed limit
on the street in question was 30 miles per hour. The speed estimate
of defendants’ expert was based, inter alia, on a time and distance
calculation derived from videotapes taken from cameras that were on
the bus. The estimate of the expert concerning the length of time,
i.e., 1.5 seconds, in which decedent was in the street before being
hit by the bus is supported not only by the videos, which were played
for the jury, but also by the average pedestrian walking speed, as
explained by the expert at trial. We note that plaintiff is correct
that defendants’ expert testified on cross-examination that, based
upon the location of the bus as depicted on the accident survey
prepared by a land surveyor retained by plaintiff, the bus must have
been traveling at approximately 40 miles per hour when it struck
decedent. We conclude, however, that such testimony created an issue
of fact for the jury to resolve and did not render the expert’s
testimony on direct examination incredible as a matter of law. In
light of the expert’s conflicting testimony regarding the speed of the
bus, it cannot be said that the evidence so preponderated in favor of
plaintiff that the jury’s verdict “ ‘could not have been reached on
any fair interpretation of the evidence’ ” (Lifson v City of Syracuse
[appeal No. 2], 72 AD3d 1523, 1524).

     We similarly reject plaintiff’s contention with respect to Cody’s
alleged violation of Vehicle and Traffic Law § 1146, which provides in
relevant part that “every driver of a vehicle shall exercise due care
to avoid colliding with any bicyclist, pedestrian, or domestic animal
upon any roadway and shall give warning by sounding the horn when
necessary” (§ 1146 [a]). Cody admittedly did not sound the horn on
the bus until he saw decedent at or about the time of impact. As
noted, however, defendants’ expert testified that decedent was in the
street for only 1.5 seconds before impact. Considering the totality
of the circumstances, including the fact that decedent was not in a
crosswalk and did not have the right-of-way, as well as the fact that
Cody testified that he had his eyes on the road and the oncoming
traffic, we conclude the jury’s determination that Cody was not
negligent is supported by a fair interpretation of the evidence (see
Lifson, 72 AD3d at 1524).

     Finally, we reject plaintiff’s contention that the court erred in
giving an emergency instruction, as requested by defendants. “A party
requesting the emergency instruction is entitled to have the jury so
charged if some evidence of a qualifying emergency is presented. If,
under some reasonable view of the evidence, an actor was confronted by
a sudden and unforeseen occurrence not of the actor’s own making, then
the reasonableness of the conduct in the face of the emergency is for
the jury, which should be appropriately instructed” (Rivera v New York
City Tr. Auth., 77 NY2d 322, 327, rearg denied 77 NY2d 990). Here,
there is a reasonable view of the evidence that Cody was presented
with an emergency situation, inasmuch as decedent suddenly walked into
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                                                         CA 10-01207

the street, without looking for oncoming traffic. Additionally, the
issues whether Cody was negligent in allegedly speeding or in failing
to sound the horn of the bus in a timely manner were for the jury to
resolve, and they did not preclude the court’s emergency instruction
(see id. at 328; Feaster v New York City Tr. Auth., 172 AD2d 284, 284-
285).




Entered:   February 18, 2011                   Patricia L. Morgan
                                               Clerk of the Court
