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. 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).

  3. Stevens v. New York

    47 A.D.3d 624 (N.Y. App. Div. 2008)   Cited 20 times

    The matter proceeded to a trial on the issue of liability, after which the Court of Claims dismissed the claim. 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 ( Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499; see Domanova v State of New York, 41 AD3d 633, 634; Mastroianni v State of New York, 35 AD3d 674, 675). Here, the Court of Claims determined that the defendant bore no responsibility for the claimant's injuries.

  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. 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 ).

  6. McGowan v. State

    79 A.D.3d 984 (N.Y. App. Div. 2010)   Cited 14 times

    We reverse. 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 ( Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499; see Stevens v State of New York, 47 AD3d 624, 624-625; Domanova v State of New York, 41 AD3d 633, 634; Emmi v State of New York, 143 AD2d 876, 878; Marren v State of New York, 142 AD2d 717, 718; Reavey v State of New York, 125 AD2d 656; Matter of Fasano v State of New York, 113 AD2d 885; McKenna v State of New York, 91 AD2d 1066; Telfair v State of New York, 87 AD2d 610). Here, the Court of Claims determined that the State bore no responsibility for McGowan's injuries.

  7. 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.

  8. Lehrer v. Cavallo

    43 A.D.3d 1059 (N.Y. App. Div. 2007)   Cited 11 times

    Thus, the rule changes adopted at the earlier meeting were in full force and effect at the time of the challenged September 15, 2006 meeting. Where, as here, a case is tried without a jury, the Appellate Division's "authority is as broad as that of the trial court . . . and as to a bench trial it may render the judgment it finds warranted by the facts" ( Northern Westchester Professional Park Assoc., v Town of Bedford, 60 NY2d 492, 499; see Domanova v State of New York, 41 AD3d 633). The petitioners failed to make a clear showing that the notice for and conduct of the September 15, 2006 organizational meeting violated the Election Law, or involved such fraud or irregularities as would render it impossible to determine who was rightfully nominated or elected at the meeting ( see Election Law § 16-102; cf. Matter of Mills, 291 NY 98, 102-103). Aside from the fact that the mailing announcing the organizational meeting was reasonably calculated to give timely notice to the County Committee members, the alleged irregularities adduced at the hearing were not "of such a nature as to establish the probability that the result of the election would be changed by a shift in, or an invalidation of, the questioned votes," thereby requiring a new election ( Matter of Lisa v Board of Elections of City of NY., 40 NY2d 911, 912; see Matter of Stevenson v Power, 27 NY2d 152, 154; Matter of Ippolitov Power, 22 NY2d 594, 597-598).

  9. 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 ).

  10. 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.