Domanova v. State

42 Citing cases

  1. Pilato v. State

    2024 N.Y. Slip Op. 51229 (N.Y. Ct. Cl. 2024)

    Such duty of care imposes upon drivers obligations to: maintain a safe rate of speed, keep their vehicle under reasonable control; be on a proper lookout under the conditions then prevailing to see and be aware of what is in their view; and use reasonable care to avoid accidents (National Interstate v A.J. Murphy Co., Inc., 9 A.D.3d 714, 716 [3d Dept 2004]; Woolley v Coppola, 179 A.D.2d 991, 992 [3d Dept 1992]; Oberman v Alexander's Rent-A-Car, 56 A.D.2d 814, 815 [1st Dept 1977]; lv denied 42 N.Y.2d 806 [1977]; see PJI 2:77; VTL §§ 1126 [a], 1163[a], [e], 1180[a], 1212). A driver has a common-law duty to see that which should have been seen through the proper use of his senses (Perez v State of New York, No. 2015-030-018 (Ct Cl, Scuccimarra, J., Nov. 10, 2015]; see Domanova v State of New York, 41 A.D.3d 633, 634 [2d Dept 2007]; Larsen v Spano, 35 A.D.3d 820, 822 [2d Dept 2006]; see also Barbieri v Vokoun, 72 A.D.3d 853, 856 [2d Dept 2010]).

  2. Levin v. City of Rochester

    77 Misc. 3d 1224 (N.Y. Sup. Ct. 2023)

    Further, it is immaterial whether Craig had a hearing impairment that prevented him hearing the truck. Even if he had a hearing impairment on the day of the accident, that in no way would excuse the actions of the City's driver, who was charged with the common-law duty to "see what was there to be seen" (seeStrassburg v Merchants Auto. Group, Inc. , 203 AD3d 1735, 1736 [4th Dept 2022] ; Miller v Silvarole Trucking Inc. , ––– AD3d ––––, 2022 WL 17882390, at *1, 22 NY Slip Op 07348 [4th Dept Dec. 23, 2022]); and a "a statutory duty to use due care to avoid colliding with pedestrians" ( Barbieri v. Vokoun, 72 AD3d 853, 856 [2d Dept 2010] ; see Vehicle and Traffic Law § 1146 ; see alsoBush v Kovacevic , 140 AD3d 1651, 1653 [4th Dept 2016] [holding that defendant's failure to see the plaintiff is not excused because the plaintiff was walking slowly holding a cane], citing Domanova v. State of New York, 41 AD3d 633, 634 [2d Dept 2007] ). The bottom line here, one that counsel for the City does not seem to accept, is that the court does not issue scheduling orders as merely advisory guidelines, to be ignored or adjusted as the circumstances require, without approval of the court.

  3. Lieb v. Jacobson

    2022 N.Y. Slip Op. 1153 (N.Y. Sup. Ct. 2022)

    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; Finkel v Benoit, 211 A.D.2d at 750). 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 (see Domanova v State of New York, 41 A.D.3d 633, 634; Larsen v Spano, 35 A.D.3d at 822). 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 (see Barbieri v Vokoun, 72 A.D.3d at 856; Larsen v Spano, 35 A.D.3d 820, 822).

  4. 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 ).

  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. Seelye v. Osterby

    2020 N.Y. Slip Op. 35360 (N.Y. Sup. Ct. 2020)

    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).

  7. Goetz v. Madler

    2020 N.Y. Slip Op. 35192 (N.Y. Sup. Ct. 2020)

    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.

  8. Jin Zheng v. Jinghui Xie

    2020 N.Y. Slip Op. 31214 (N.Y. Sup. Ct. 2020)

    "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."

  9. Massa v. Simpson

    2020 N.Y. Slip Op. 35071 (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]). 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,

  10. Arrospide v. Murphy

    2019 N.Y. Slip Op. 34645 (N.Y. Sup. Ct. 2019)

    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]).