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.
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]).
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)).
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 ).
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 ).
Such duty of care imposes upon drivers obligations to: maintain a safe rate of speed, keep their vehicle under reasonable control; be on a proper lookout under the conditions then prevailing to see and be aware of what is in their view; and use reasonable care to avoid accidents (National Interstate v A.J. Murphy Co., Inc., 9 A.D.3d 714, 716 [3d Dept 2004]; Woolley v Coppola, 179 A.D.2d 991, 992 [3d Dept 1992]; Oberman v Alexander's Rent-A-Car, 56 A.D.2d 814, 815 [1st Dept 1977]; lv denied 42 N.Y.2d 806 [1977]; see PJI 2:77; VTL §§ 1126 [a], 1163[a], [e], 1180[a], 1212). A driver has a common-law duty to see that which should have been seen through the proper use of his senses (Perez v State of New York, No. 2015-030-018 (Ct Cl, Scuccimarra, J., Nov. 10, 2015]; see Domanova v State of New York, 41 A.D.3d 633, 634 [2d Dept 2007]; Larsen v Spano, 35 A.D.3d 820, 822 [2d Dept 2006]; see also Barbieri v Vokoun, 72 A.D.3d 853, 856 [2d Dept 2010]).
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; Finkel v Benoit, 211 A.D.2d at 750). 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 (see Domanova v State of New York, 41 A.D.3d 633, 634; Larsen v Spano, 35 A.D.3d at 822). 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 (see Barbieri v Vokoun, 72 A.D.3d at 856; Larsen v Spano, 35 A.D.3d 820, 822).
When a driver approaches another vehicle from the rear, he is bound to maintain a reasonably safe rate of speed and to maintain control of his vehicle and use reasonable care to avoid colliding with the other vehicle (Vehicle and Traffic Law § 1129 [a]; Gallo v Jairath, 122 A.D.3d 795, 996 N.Y.S.2d 682 [2d Dept 2014]; Cajas-Romero v Ward, 106 A.D.3d 850, 965 N.Y.S.2d 559 [2d Dept 2013]; Nsiah-Ababio v Hunter, 78 A.D.3d 672, 913 N.Y.S.2d 659 [2d Dept 2010]). A driver is negligent in failing to see that which under the facts and circumstances he should have seen by the proper use of his senses (see Barbieri v Vokoun, 72 A.D.3d 853, 900 N.Y.S.2d 315 [2d Dept 2010]; Domanova v State of New York, 41 A.D.3d 633, 838 N.Y.S.2d 644 [2d Dept 2007]; Lester v Jolicofur et al., 120 A.D.2d 574; 502 N.Y.S.2d 61 [2d Dept 1986]).
Defendant's failure to see plaintiff before the collision does not in itself provide an evidentiary basis from which to infer that she was not there to be seen. As in Domanova v State of New York (41 A.D.3d 633, 634 [2d Dept 2007]), where the driver who struck a pedestrian in a crosswalk testified at trial that he did not see anyone in the crosswalk, "the fact that the driver never saw the [plaintiff] does not excuse [her] conduct" (id.). Moreover, since defendant pleaded guilty to a violation of Vehicle and Traffic Law § 1151 (a), which charge was based on her failure to yield to a pedestrian in a crosswalk, she cannot now be heard to contradict her own legal admission so as to deny plaintiffs presence in the crosswalk, especially in the absence of any explanation for her change of position, and absent affirmative proof supporting her assertion.
"Although a driver facing a steady green light is entitled to proceed, he or she has a duty to yield the right-of-way to pedestrians lawfully within a crosswalk" (Barbieri v. Vokoun, 72 AD3d 853 ). Defendant driver also has the common law duty "to see that which he should have seen through the proper use of his senses" (id., citing Domanova v. State of N.Y., 41 AD.3d 633 ). Vehicle and Traffic Law § 1152(a) provides that "a pedestrian crossing a roadway at any point other than within a marked crosswalk . . . shall yield the right of way to all vehicles upon the roadway."