Hinkle v Trejo, 2011 NY Slip Op 08636 [89 AD3d 631]

November 29, 2011

Appellate Division, First Department

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The Breakstone Law Firm, P.C., Bellmore (Jay L.T. Breakstone of counsel), for appellant.

Gottlieb Siegel & Schwartz, LLP, Bronx (Shane M. Biffar of counsel), for respondents.

Judgment, Supreme Court, New York County (Nicholas Figueroa, J.), entered October 29, 2009, upon a jury verdict in defendants’ favor in this action for personal injuries sustained when plaintiff pedestrian was struck by defendants’ motor vehicle, unanimously affirmed, without costs.

The jury’s finding that defendant driver was not negligent in striking plaintiff pedestrian was based upon a fair interpretation of the evidence ( see McDermott v Coffee Beanery, Ltd. , 9 AD3d 195 , 206 [2004]). The jury clearly credited the driver’s testimony that he had looked towards the curb immediately before the accident and had not seen anyone in his path, which determination is entitled to deference ( see Haiyan Lu v Spinelli , 44 AD3d 546 [2007]). The jury could have inferred from the evidence that plaintiff, who was on her cell phone, suddenly stepped out onto the street, without giving the driver enough time to avoid the accident ( see e.g. Jordan v Doyle , 24 AD3d 107 [2005], lv denied 7 NY3d 705 [2006]).

The court properly included a charge as to Vehicle and Traffic Law § 1152 (a) in light of the evidence that plaintiff may have been outside of the crosswalk at the time of the accident ( cf. Cavalli v Cohen , 209 AD2d 240 [1994]). The trial court also did not abuse its discretion in sua sponte striking improper hearsay testimony ( see e.g. Campbell v Rogers & Wells , 218 AD2d 576, 579 [1995]). Concur—Mazzarelli, J.P., Andrias, Friedman, Catterson and Freedman, JJ..