Opinion
March 21, 1960
In an action to recover damages for injuries to person and property (1st and 2d causes of action), and for medical expenses and loss of services (3d cause of action), the appeal is from a judgment of the City Court of Mount Vernon, entered upon a jury's verdict, in favor of respondents on the first and second causes of action. Respondent Sylvia Stanitis was injured when a motor vehicle owned by her husband, respondent Joseph Stanitis, and operated by her, was involved in a collision with a motor vehicle owned by appellant Michael Cecere and operated by appellant Luigi Cecere. Judgment reversed, first and second causes of action severed, and a new trial ordered as to the issues raised by said causes of action and the answer thereto, with costs to abide the event. There was testimony that in an effort to obtain sufficient clearance to complete a turn, respondent Sylvia Stanitis backed her vehicle partly into an intersection in the path of appellants' oncoming vehicle, and came to a stop about three or four seconds prior to the impact. There is nothing to show, however, that appellant Luigi Cecere had actual knowledge of the danger in time to avert the collision. Under the circumstances, it was error to charge that liability could be predicated on the doctrine of last clear chance ( Hernandez v. Brooklyn Queens Tr. Corp., 284 N.Y. 535; Panarese v. Union Ry. Co. of New York City, 261 N.Y. 233). Nolan, P.J., Ughetta, Christ, Pette and Brennan, JJ., concur.