
    Waverly Thompson, Respondent, v City of New York, Appellant.
    Decided November 29, 1983
    
      APPEARANCES OF COUNSEL
    
      Frederick A. O. Schwarz, Jr., Corporation Counsel (.Leonard Koerner and Alfred Weinstein of counsel), for appellant.
    
      Philip M. Damashek, P. C., and Sally Weinraub, P. C., for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment appealed from and the order of the Appellate Division brought up for review should be affirmed, with costs.

Plaintiff was injured when the legally parked vehicle in which she was sitting was struck by one of defendant’s fire trucks, as it attempted to negotiate a turn. In plaintiff’s negligence action against the city, Captain Brennan, a fireman directing the truck as it turned, testified on direct examination that, “I did not see [the parked car] * * * I should have seen it but I didn’t.” An investigation by the fire department introduced at trial indicated that the accident was caused by an “error of judgment” by a fireman in a nonemergency situation. After the court denied plaintiff’s motion for a directed verdict at the close of the evidence, the jury returned a verdict for defendant. On appeal, the Appellate Division reversed and directed judgment for plaintiff on the liability issue.

Contrary to defendant’s argument that the motion was untimely because made after the court’s charge, plaintiff properly preserved her rights by reserving her motion for a

directed verdict with the consent of the court (CPLR 4401; 4 Weinstein-Korn-Miller, NY Civ Prac, par 4401.12). Inasmuch as the motion was timely, the Appellate Division possessed the power to reverse Trial Term and to direct a verdict for plaintiff, action which upon evidence the trial court should have taken (CPLR 5522; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 5522:1, p 222). Given the evidence of defendant’s fault, and the absence of any evidence contradicting it, the Appellate Division properly directed a verdict for plaintiff because “by no rational process could the trier of the facts base a finding in favor of the defendant upon the evidence * * * presented” (Blum v Fresh Grown Preserve Corp., 292 NY 241, 245).

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, in a memorandum.  