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 ยง 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).
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.
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.
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.
The defendant driver Singh 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 (2d Dept 2007);Larsen v Spano, 35 AD3d820 (2d 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.
The defendant driver Bowen 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 (2d Dept 2007);Larsen v Spano, 35 AD3d820 (2d 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.
Thus, the verdict should have been set aside. However, the plaintiff was not entitled to judgment as a matter of law in her favor, as there is an issue of fact as to whether she was also at fault in causing the accident ( see Domanova v State of New York, 41 AD3d 633, 634-635; Larsen v Spano, 35 AD3d at 821-822).
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 ยง 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.
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.
It is well established that a driver approaching another vehicle from the rear has a duty to maintain a reasonably safe rate of speed and control over his vehicle and to exercise reasonable care to avoid colliding with the other vehicle (see Chepel v Meyers, 306 AD2d 235 [2nd Dept]; Power v Hupart, 260 AD2d 458 [2nd Dept]). A driver also has a common-law duty to see that which he should have seen through the proper use of his senses (see Domanova v. State, 41 AD 3d 633 [2nd Dept 2007]). Moreover, a driver has a duty to maintain a safe distance from the vehicle ahead (see Filippazzo v Santiago, 277 AD2d 419 [2 nd Dept]).