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]).
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.
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)).
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 ).
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]).
Shui-Kwan Lui v. Serrone, 103 A.D.3d 620 (2d Dept. 2013). See,Domanova v. State of New York, 41 A.D.3d 633, 634 (2d Dept. 2007) (that driver failed to see pedestrian in crosswalk did not excuse his striking her in course of attempted left turn).
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."
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]). The occurrence of a rear-end collision with a stopped or stopping vehicles creates a prima facie case of negligence on the part of the operator of the rear vehicle and imposes a duty on that operator to come forward with a non- negligent explanation for the collision (Montalvo v. Cedeno, 170 A.D.3d 1166, 96 N.Y.S.3d 638 [2d Dept. 2019]; McLaughlin v. Lunn, 137 A.D.3d 757, 26 N.Y.S.3d 338 [2d Dept 2016]; Cheow v. Cheng Lin Jin, 121 A.D.3d 1058, 995 N.Y.S.2d 186 [2d Dept 2014]; Perez v Roberts, 91 A.D.3d 620, 936 N.Y.S.2d 259 [2d Dept 2012]; Volpe v. Limoncelli, 74 A.D.3d 795, 902 N.Y.S.2d 152 [2d Dept 2010]; Ramirez v. Konstanzer, 61 A.D.3d 837, 878 N.Y.S.2d 381 [2d Dept 2009]). This burden is placed on the driver of the rear vehicle because he is in the best position to explain whether the collision was due to a mechanical failure, a sudden stop of the vehicle ahead,
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]). The occurrence of a rear-end collision with a stopped or stopping vehicles creates a prima facie case of negligence on the part of the operator of the rear vehicle and imposes a duty on that operator to come forward with a non-negligent explanation for the collision (Montalvo v. Cedeno, 170 A.D.3d 1166, 96 N.Y.S.3d 638 [2d Dept. 2019],McLaughlin v Lunn, 137 A.D.3d 757, 26 N.Y.S.3d 338 [2d Dept 2016]; Cheow v Cheng Lin Jin, 121 A.D.3d 1058, 995 N.Y.S.2d 186 [2d Dept 2014]; Perez v Roberts, 91 A.D.3d 620, 936 N.Y.S.2d 259 [2d Dept 2012]; Volpe v Limoncelli, 74 A.D.3d 795, 902 N.Y.S.2d 152 [2d Dept 2010]; Ramirez v Konstanzer, 61 A.D.3d 837, 878 N.Y.S.2d 381 [2d Dept 2009]).