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Smalley v. McCarthy

Appellate Division of the Supreme Court of New York, Second Department
Oct 26, 1998
254 A.D.2d 478 (N.Y. App. Div. 1998)

Opinion

October 26, 1998

Appeal from the Supreme Court, Kings County (Archer, J.).


Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision ( see, Schicchi v. Green Constr. Corp., 100 A.D.2d 509); and it is further,

Ordered that on the Court's own motion, the appellants' notice of appeal from the order is treated as an application for leave to appeal, and leave to appeal is granted ( see, CPLR 5701 [c]); and it is further,

Ordered that the order is affirmed; and it is further,

Ordered that the respondents are awarded one bill of costs.

The trial court's decision to set aside the jury verdict finding that the defendant Kathleen A. McCarthy was not negligent in the operation of her automobile and to order a new trial was not erroneous since such a finding could not be reached "on any fair interpretation of the evidence" ( Nicastro v. Park, 113 A.D.2d 129, 134). Ms. McCarthy testified that she did not see the plaintiff's car approaching the intersection from the opposite direction, and did not yield the right-of-way in accordance with Vehicle and Traffic Law § 1141. Thus, Ms. McCarthy was negligent in either failing to see that which under the facts and circumstances she should have seen, or in crossing in front of the plaintiff's vehicle when it was hazardous to do so ( see, Spells v. Lewis, 197 A.D.2d 888, 889; Burns v. Mastroianni, 173 A.D.2d 754, 755; Hernandez v. Joseph, 143 A.D.2d 632; Lester v. Jolicofur, 120 A.D.2d 574; Kiernan v. Edwards, 97 A.D.2d 750).

Ritter, J. P., Thompson, Pizzuto and McGinity, JJ., concur.


Summaries of

Smalley v. McCarthy

Appellate Division of the Supreme Court of New York, Second Department
Oct 26, 1998
254 A.D.2d 478 (N.Y. App. Div. 1998)
Case details for

Smalley v. McCarthy

Case Details

Full title:LINDA SMALLEY, Respondent, v. AUGUST McCARTHY et al., Appellants, and…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Oct 26, 1998

Citations

254 A.D.2d 478 (N.Y. App. Div. 1998)
679 N.Y.S.2d 406

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