In Shenkelbakh v. Riera (N.Y. Sup. Ct. Qns. Cty Aug. 17, 2015), a personal injury bicycle accident case, plaintiff bicyclist sued after being hit by defendant driver. The jury returned a verdict in defendant’s favor, and absolved defendant of liability. The court granted plaintiff’s CPLR 4404(a) motion to set aside the jury verdict.
Here are the undisputed facts, from the decision:
Defendant was operating his motor vehicle in the right lane of traffic and plaintiff was operating a bicycle in the right lane of traffic, near the curb. Defendant attempted to turn his vehicle right into a driveway and came into contact with plaintiff’s bicycle. Defendant testified that prior to attempting the turn, he turned on his right turn signal, checked his right side-view mirror which allowed him to see as far as the cars moving on Flushing Avenue, sixty feet behind his vehicle, did not observe plaintiff or any other obstruction and attempted to turn, striking plaintiff. Defendant did not turn his head, using only his side-view mirror to observe the road behind him. Plaintiff testified that he was wearing a bright yellow jersey, immediately prior to the accident defendant’s vehicle was to his left, both plaintiff and defendant were traveling at approximately ten miles per hour and that defendant turned his vehicle, striking plaintiff on the shoulder and pushing him to the ground.
The court noted that, after closing arguments, it charged the following sections of the Pattern Jury Instructions: “2:26, modified to include Vehicle and Traffic Law §1163(a), requiring the defendant not to turn his vehicle unless such movement can be made with reasonable safety; 2:76A, requiring defendant to keep a reasonably vigilant lookout for bicyclists and to avoid colliding with anyone on the road; 2:77; and 2:77.1, charging a driver with the duty to see that which should have been seen by proper use of his senses.”
In setting aside the verdict, the court explained:
Defendant specifically admitted that he did not turn his head to check the blind spot of his vehicle, using only his side-view mirror. The only logical inference is that plaintiff was operating his bicycle in the immediate vicinity of defendant’s vehicle and that defendant failed to keep a reasonably vigilant lookout for bicyclists and failed to see what he should have seen. Defendant further violated Vehicle and Traffic Law §1163(a) as he turned his vehicle before such movement could be made safely. While it is possible that plaintiff was comparatively negligent in the happening of this accident, there is no possible view of the evidence which completely relieves defendant of all negligence.
A new trial is set for September 2, 2015.