Domanova v. State

9 Citing cases

  1. 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).

  2. 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

  3. Hammond v. Diaz

    82 A.D.3d 839 (N.Y. App. Div. 2011)   Cited 13 times

    The evidence must be viewed in the light most favorable to the prevailing party ( see Dublis v Bosco, 71 AD3d 817). Here, the proof established that the defendant driver, inter alia, failed to see that which he should have seen through the proper use of his senses when he turned left into the subject intersection, striking the plaintiff ( see Barbieri v Vokoun, 72 AD3d 853; Domanova v State of New York, 41 AD3d 633, 634; Larsen v Spano, 35 AD3d 820, 822). Accordingly, there was legally sufficient evidence supporting the jury's verdict in favor of the plaintiffs and against the defendants.

  4. Vidal v. N.Y

    50 A.D.3d 511 (N.Y. App. Div. 2008)   Cited 18 times
    In Bello, we held that the jury could conclude that a bus driver should have been alert to the possibility that "one of the rowdy children on the sidewalk, who were pushing each other, would push another person into the bus" (id. at 511).

    Viewing the evidence in the light most favorable to plaintiff ( see Hersh v. New York City Tr. Auth., 297 AD2d 556), it cannot be said that there exists no valid line of reasoning or permissible inferences which could possibly lead a rational juror to conclude that the bus driver was put on notice of the dangerous possibility that one of the rowdy children on the sidewalk, who were pushing each other, would push another person into the bus ( see generally Cohen v. Hallmark Cards, 45 NY2d 493, 499; Baker v. Turner Constr. Co., 200 AD2d 525, lv denied 83 NY2d 755), and that the driver should have pulled in further from the curb. Contrary to defendants' contention, the trial court's instruction that "[a] driver is charged with the duty to see that which under the facts and circumstances he should have seen by the proper use of his senses" was appropriate (PJI 2:77.1; see Conradi v. New York City Tr. Auth., 249 AD2d 436; see also Domanova v. State of New York, 41 AD3d 633, 634). The awards for past and future pain and suffering do not deviate materially from reasonable compensation.

  5. Geico Gen. Ins. Co. v. The Town of Islip

    2020 N.Y. Slip Op. 35133 (N.Y. Sup. Ct. 2020)

    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]).

  6. Donnellan v. Leonid Kitovsky & Creative Furniture, Inc.

    2018 N.Y. Slip Op. 33310 (N.Y. Sup. Ct. 2018)

    "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 A.D.3d 853, 900 N.Y.S.2d 315 [2 Dept., 2010)]). 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 A.D.3d 633, 838 N.Y.S.2d 644 [2 Dept., 2007]). Defendants failed to eliminate all triable issue of fact as to whether Kitovsky took reasonable care to avoid the collision and whether defendant was speeding at the time of the collision (see generally Alatsas v Sacchetti, -- AD3d --, 2018 NY Slip Op 08270 [2 Dept., 2018]).

  7. Fernandes v. Ramsahai

    2016 N.Y. Slip Op. 30498 (N.Y. Sup. Ct. 2016)

    Vehicle and Traffic Law § 1163 provides that no person shall turn a vehicle at an intersection "until such movement can be made with reasonable safety." Furthermore, every driver has a common law duty to see that which should be seen through the proper use of his or her senses and to exercise reasonable care to avoid colliding with another vehicle (see Weigand v United Traction Co., 221 NY 39, 116 NE 345 [1917]; Shui-Kwan Lui v Serrone, 103 AD3d 620, 959 NYS2d 270; Colpan v Allied Cent. Ambulette, Inc., 97 AD3d 776, 949 NYS2d 124 [2d Dept 2012]; Domanova v State of New York, 41 AD3d 633, 838 NYS2d 644 [2d Dept 2007]).

  8. Krimendahl v. Hurley

    2015 N.Y. Slip Op. 32482 (N.Y. Sup. Ct. 2015)

    Pursuant to Vehicle and Traffic Law § 1126 (a), when official markings are in place indicating those portions of any highway where overtaking and passing or driving to the left of such markings would be especially hazardous, "'no driver of a vehicle proceeding along such highway shall at any time drive on the left side of such markings." While every driver also has a duty to see that which should be seen through the proper use of his or her senses and to exercise reasonable care to avoid colliding with another vehicle (see Weigand v United Traction Co.,221 NY 39, 116 NE 345 [1917]; Zweeres v Materi, 94 AD3d 1111, 942 NYS2d 625 [2d Dept 2012]; Domanova v State of New York,41 AD3d 633, 838 NYS2d 644 [2d Dept 2007]), a driver is not required to anticipate that an automobile going in the opposite direction will cross over into oncoming traffic (Sullivan v Mandato,58 AD3d 714, 873 NYS2d 96 ["2d Dept 2009]). Such conduct constitutes negligence as a matter of law unless justified by an emergency situation which is not created by the driver (DiSiena v Giammarino,72 AD3d 873, 898 NYS2d 664 [2d Dept 2010]).

  9. Roth v. State

    # 2012-045-502 (N.Y. Ct. Cl. Mar. 21, 2012)

    However, it has also been established that the subject pothole was visible and apparent at the time of the accident. The accident occurred during daylight hours on a clear day. Claimant has a common-law duty to see that which she should have seen through the proper use of her senses (Domanova v State of New York, 41 AD3d 633 [2d Dept 2007]). Consequently, claimant's negligence was also a substantial factor in the happening of this accident.