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 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.
In addition to the common law duty owed by every driver to see that which should be seen through the proper use of his or her senses (see Barbieri v. Vokoun, 72 AD3d 853, 900 NYS2d 315 [2d Dept.2010]; Domanova v. State of New York, 41 AD3d 633, 838 NYS2d 644 [2d Dept. 2007]), Vehicle & Traffic Law § 1146 (a) provides in relevant part that "[n]otwithstanding the provisions of any other law to the contrary, every driver of a vehicle shall exercise due care to avoid colliding with any bicyclist, pedestrian, or domestic animal upon any roadway and shall give warning by sounding the horn when necessary." Vehicle & Traffic Law § 1151 (b) provides that "[n]o pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impractical for the driver to yield."
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]).
The cross-movants argue that Alvarez did not owe a duty to the decedent and that, if he is found to have owed the decedent duty, it was a merely the duty of ordinary care. A driver operating his or her vehicle upon a public roadway has a common-law duty to see what he or she should have seen through the proper use of his or her senses (seeDomanova v State of New York , 41 AD3d 633, 634). On their cross-motion, Alvarez Lease Line and UTS Transport Services have the prima facie burden of "tendering sufficient evidence to demonstrate the absence of any material issues of fact" ( Alvarez v Prospect Hosp., 68 NY2d 320, 324; see Smalls v AJIIndus., Inc. , 10 NY3d 733, 735).
The defendant driver Wallerstein also has a common-law duty to see that which he should have seen through the proper use of his senses. Domanova v State of New York, 2007 NY Slip Op. 5454 (2nd Dept 2007); Larsen v Spano, 35 AD3d 820 (2nd Dept 2006). However, the law imposes a duty upon the pedestrian not to leave the curb or other place of safety and enter the path of the vehicle when it is so close that it is impractical for the driver to yield.