Domanova v. State

42 Citing cases

  1. Barbieri v. Vokoun

    72 A.D.3d 853 (N.Y. App. Div. 2010)   Cited 110 times
    In Barbieri v Vokoun (72 AD3d 853 [2d Dept 2010]), the Second Department held, in a similar case involving a driver colliding into a pedestrian with the right of way at a crosswalk, that a violation of a standard of care imposed by the Vehicle and Traffic Law constitutes negligence per se, citing to Coogan v Torrisi, 47 AD3d 669, 670 [2d Dept 2008] ; Jones v Radeker, 32 AD3d 494, 496 [2d Dept 2006] ; and Lagana v Fox, 6 AD3d 583 [2d Dept 2004]).

    Furthermore, the jury's finding could not be upheld even if the plaintiff stepped slightly outside the boundaries of the marked crosswalk while traversing 7th Street. The defendant had a statutory duty to use due care to avoid colliding with pedestrians on the roadway ( see Vehicle and Traffic Law § 1146), as well as a common-law duty to see that which he should have seen through the proper use of his senses ( see Domanova v State of New York, 41 AD3d 633, 634; Larsen v Spano, 35 AD3d 820, 822). The defendant's own testimony demonstrates that he was well aware that the plaintiff was standing at the corner waiting to cross 7th Street before he began executing his turn.

  2. Figueroa v. Hentschll

    2019 N.Y. Slip Op. 34751 (N.Y. Sup. Ct. 2019)

    Under these circumstance,, defendant failed to yield the right of way to plaintiff and while executing a U-turn failed to see what there was to be seen, namely, plaintiffs vehicle that was lawfully driving straight in the right most lane on the southbound side of Mamaroneck Avenue. The fact that defendant never saw plaintiff does not excuse her conduct (Dornanova v. State, 41 A.D.3d 633, 634 [2d Dept 2007]). Notwithstanding any alleged negligence on the part of plaintiff, defendant had a common-law duty to see that which she should have seen through the proper use of her senses (Domanova v State, 41 A.D.3d 633,644 [2d Dept 2007]).

  3. Lazo v. Nunez-Romero

    2019 N.Y. Slip Op. 33925 (N.Y. Sup. Ct. 2019)

    Defendant's failure to see plaintiff before the collision does not provide an evidentiary basis from which to infer that she was not there to be seen; "[u]nder the circumstances, the fact that the driver never saw the [plaintiff] does not excuse his conduct" (Domanova v State of NewYork, 41 AD3d 633, 634 [2d Dept 2007]). In the absence of any affirmative proof that plaintiff was not present on the roadway prior to the moment of impact, there is no issue of fact as to whether defendant breached an obligation to notice, and yield to, the pedestrian plaintiff.

  4. Medina v. Delta Air Lines, Inc.

    09-CV-4018 (NGG) (LB) (E.D.N.Y. Aug. 16, 2011)   Cited 3 times

    In the motor vehicle accident context, a defendant has "a statutory duty to use due care to avoid colliding with pedestrians on the roadway, as well as a common-law duty to see that which he should have seen through the proper use of his sense." Barbieri v. Vokoun, 900 N.Y.S.2d 315, 318 (N.Y. App. Div., 2d Dep't 2010) (citing N.Y. Veh. Traf. Law § 1146 and Domanova v. State of New York, 838 N.Y.S.2d 644, 645 (N.Y. App. Div., 2d Dep't 2007)).

  5. Lieb v. Jacobson

    202 A.D.3d 1072 (N.Y. App. Div. 2022)   Cited 11 times

    The defendant driver's testimony in support of the defendants’ contention that the defendants’ vehicle had entered the crosswalk before the plaintiff entered it was conclusory, speculative, and contradictory (see e.g.Barbieri v. Vokoun, 72 A.D.3d at 855–856, 900 N.Y.S.2d 315 ; Finkel v. Benoit, 211 A.D.2d at 750, 622 N.Y.S.2d 295 ). Notwithstanding any alleged negligence on the part of the plaintiff, the defendant driver's failure to observe the plaintiff in the crosswalk prior to the accident was a violation of the defendant driver's common-law duty to see that which he should have seen through the proper use of his senses (seeDomanova v. State of New York, 41 A.D.3d 633, 634, 838 N.Y.S.2d 644 ; Larsen v. Spano, 35 A.D.3d at 822, 827 N.Y.S.2d 276 ). Under these circumstances, the jury's verdict that the defendant driver was free from negligence was not supported by any fair interpretation of the evidence (seeBarbieri v. Vokoun, 72 A.D.3d at 856, 900 N.Y.S.2d 315 ; Larsen v. Spano, 35 A.D.3d 820, 822, 827 N.Y.S.2d 276 ).

  6. Finney v. Morton

    170 A.D.3d 811 (N.Y. App. Div. 2019)   Cited 10 times

    The defendant appeals. "Where, as here, a case is tried without a jury, this Court's authority is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts, ‘taking into account in a close case the fact that the trial judge had the advantage of seeing the witnesses’ and hearing the testimony" ( West St. Props., LLC v. American States Ins. Co., 150 A.D.3d 792, 794, 53 N.Y.S.3d 674, quoting Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809 [internal quotation marks omitted]; seeDomanova v. State of New York, 41 A.D.3d 633, 634, 838 N.Y.S.2d 644 ; Letterese v. State of New York, 33 A.D.3d 593, 593, 821 N.Y.S.2d 468 ). Here, the Supreme Court's determination that the defendant was 95% at fault in the happening of the accident was not warranted by the facts.

  7. Bush v. Kovacevic

    140 A.D.3d 1651 (N.Y. App. Div. 2016)   Cited 15 times

    99 A.D.2d at 798, 472 N.Y.S.2d 132 ).In any event, defendant admitted that she did not see plaintiff until the impact had already occurred, and we thus conclude that defendant's claim concerning plaintiff's location in the street is mere speculation and an insufficient basis to deny plaintiff's motion insofar as it relates to defendant's negligence (see France Herly Bien–Aime v. Clare, 124 A.D.3d 814, 815, 2 N.Y.S.3d 557 ; Sulaiman v. Thomas, 54 A.D.3d 751, 752, 863 N.Y.S.2d 723 ). Although defendant contended that she looked for pedestrians before turning left, defendant had both “a statutory duty to use due care to avoid colliding with pedestrians” (Barbieri v. Vokoun, 72 A.D.3d 853, 856, 900 N.Y.S.2d 315 ; see Vehicle and Traffic Law § 1146 ), as well as “a common-law duty to see that which [she] should have seen through the proper use of [her] senses ... [T]he fact that [defendant] never saw [plaintiff, who was walking slowly with a cane,] does not excuse [defendant's] conduct” (Domanova v. State of New York, 41 A.D.3d 633, 634, 838 N.Y.S.2d 644 ; see Barbieri, 72 A.D.3d at 856, 900 N.Y.S.2d 315 ). Contrary to plaintiff's contention, however, we conclude that there are issues of fact concerning plaintiff's comparative negligence (see Brubaker, 83 A.D.3d at 1540, 921 N.Y.S.2d 607 ).

  8. Farrell v. State of New York

    2011 N.Y. Slip Op. 6996 (N.Y. App. Div. 2011)   Cited 1 times

    We affirm. In reviewing a determination made after a nonjury trial, the power of this Court is as broad as that of the trial court, and this Court may render the judgment it finds "warranted by the facts," bearing in mind that in a close case, the trial judge had the advantage of seeing the witnesses and hearing the testimony ( Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499; see DePaula v State of New York , 82 AD3d 827; Bryant v State of New York , 77 AD3d 875, 876; Stevens v State of New York, 47 AD3d 624, 625; Domanovav State of New York , 41 AD3d 633, 634). Here, the trial court's determination that the claimant failed to establish her claim to recover damages for personal injuries was warranted by the facts, and we decline to disturb it. Contrary to the claimant's contention, she failed to establish that the State breached its duty to maintain the highway in a reasonably safe condition ( see Friedman v State of New York, 67 NY2d 271, 283; Lopes v Rostad, 45 NY2d 617, 623; Fiege v State of New York, 189 AD2d 748). Constructive notice of a dangerous condition may not be established through the State's general awareness that debris may exist on the highway (see Hartv State of New York , 43 AD3d 524, 525).

  9. Farrell v. State

    88 A.D.3d 638 (N.Y. App. Div. 2011)   Cited 1 times

    We affirm. In reviewing a determination made after a nonjury trial, the power of this Court is as broad as that of the trial court, and this Court may render the judgment it finds “warranted by the facts,” bearing in mind that in a close case, the trial judge had the advantage of seeing the witnesses and hearing the testimony ( Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809; see DePaula v. State of New York, 82 A.D.3d 827, 918 N.Y.S.2d 206; Bryant v. State of New York, 77 A.D.3d 875, 876, 909 N.Y.S.2d 385; Stevens v. State of New York, 47 A.D.3d 624, 625, 850 N.Y.S.2d 472; Domanova v. State of New York, 41 A.D.3d 633, 634, 838 N.Y.S.2d 644). Here, the trial court's determination that the claimant failed to establish her claim to recover damages for personal injuries was warranted by the facts, and we decline to disturb it. Contrary to the claimant's contention, she failed to establish that the State breached its duty to maintain the highway in a reasonably safe condition ( see Friedman v. State of New York, 67 N.Y.2d 271, 283, 502 N.Y.S.2d 669, 493 N.E.2d 893; Lopes v. Rostad, 45 N.Y.2d 617, 623, 412 N.Y.S.2d 127, 384 N.E.2d 673; Fiege v. State of New York, 189 A.D.2d 748, 592 N.Y.S.2d 421). Constructive notice of a dangerous condition may not be established through the State's general awareness that debris may exist

  10. Depaula v. State

    82 A.D.3d 827 (N.Y. App. Div. 2011)   Cited 29 times

    Ordered that the judgment is affirmed insofar as appealed from, with costs. In reviewing a determination made after a nonjury trial, the power of this Court is as broad as that of the trial court, and this Court may render the judgment it finds "warranted by the facts," bearing in mind that in a close case, the trial judge had the advantage of seeing the witnesses and hearing the testimony ( Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499; see Bryant v State of New York, 77 AD3d 875, 876; Stevens v State of New York, 47 AD3d 624, 625; Domanova v State of New York, 41 AD3d 633, 634). Here, the trial court's determination that the claimant failed to establish his claim to recover damages for malicious prosecution was warranted by the facts, and we decline to disturb it. Although the trial court largely credited the account of events given by the claimant and an independent witness, neither their testimony, nor the lack of probable cause for the claimant's arrest, compels the conclusion that a prior criminal proceeding was instituted "due to a wrong or improper motive, something other than a desire to see the ends of justice served" ( Nardelli v Stamberg, 44 NY2d 500, 503; see Martin v City of Albany, 42 NY2d 13, 17; Minasian v Lubow, 49 AD3d 1033, 1035; Arnold v Town of Wilton, 126 AD2d 135, 136-137).