Bolta v. Lohan
| Decision Date | 25 August 1997 |
| Citation | 242 A.D.2d 356,661 N.Y.S.2d 286 |
| Parties | , 1997 N.Y. Slip Op. 7236 Edwin D. BOLTA, Appellant, v. Kerri L. LOHAN, et al., Respondents (and other titles). |
| Court | New York Supreme Court — Appellate Division |
Lawrence Anderson, New York City, for appellant.
Robert P. Sweeney & Associates, Uniondale (Nancy S. Goodman, of counsel), for respondents.
Before MILLER, J.P., and PIZZUTO, JOY and KRAUSMAN, JJ.
MEMORANDUM BY THE COURT.
In a negligence action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Seidell, J.), dated November 18, 1996, which denied his motion for partial summary judgment on the issue of liability.
ORDERED that the order is reversed, on the law, with costs, and the motion is granted.
We agree with the plaintiff's contention that he demonstrated his entitlement to judgment as a matter of law. The evidence adduced in support of the motion established that after the defendant Kerri L. Lohan brought her vehicle to a stop at a stop sign, she proceeded into the intersection directly into the path of the plaintiff's oncoming car. The defendant Kerri L. Lohan failed to yield the right of way as required (Vehicle and Traffic Law § 1142[a] ). Therefore, the plaintiff demonstrated the defendants' liability as a matter of law (see, Salenius v. Lisbon, 217 A.D.2d 692, 630 N.Y.S.2d 531; Cassidy v. Valenti, 211 A.D.2d 876, 621 N.Y.S.2d 405; Hill v. Luna, 195 A.D.2d 1000, 600 N.Y.S.2d 563). Indeed, under such circumstances it is settled that a driver is negligent where an accident occurs because she has failed to see that which through proper use of her senses she should have seen (see, Safran v. Amato, 155 A.D.2d 653, 548 N.Y.S.2d 244; Olsen v. Baker, 112 A.D.2d 510, 490 N.Y.S.2d 916; see also, Weigand v. United Traction Co., 221 N.Y. 39, 116 N.E. 345; Milka v. Hernandez, 187 A.D.2d 1031, 1032, 590 N.Y.S.2d 342; Weiser v. Dalbo, 184 A.D.2d 935, 585 N.Y.S.2d 124). Since the plaintiff's car was clearly present, and was visible, the defendant Kerri L. Lohan should have seen it and yielded the right of way. Her failure to do so established her negligence as a matter of law.
In opposition to the plaintiff's prima facie showing, the defendants failed to prove the existence of any genuine issues of material fact that the plaintiff was comparatively negligent or that he could have done anything to avoid the collision (see, Wilke v. Price, 221 A.D.2d 846, 633 N.Y.S.2d 686...
To continue reading
Request your trial
-
Gwendolyn Gray v. Wackenhut Serv.
...261 (2009), and the Plaintiff's failure to see the security barrier over the hood of her car is negligence. See Bolta v. Lohan, 242 A.D.2d 356, 661 N.Y.S.2d 286, 286 (1997). The damage to the top of the grill of Gray's car establishes that the barrier had to be visible over the hood of her ......
-
Escoto v. United States
...vehicle driver should see, by the proper use of her senses, what was within her vision. As stated in Bolta v. Kerri L. Lohan, 242 A.D.2d 356, 661 N.Y.S.2d 286, 287 (2d Dep't 1997): Indeed, under such circumstances it is settled that a driver is negligent where an accident occurs because she......
-
Turnbull v. Powell
...or she] should have seen.” Ferrara v. Castro, 283 A.D.2d 392, 392, 724 N.Y.S.2d 81 (2nd Dept.2001) (quoting Bolta v. Lohan, 242 A.D.2d 356, 356, 661 N.Y.S.2d 286 (2nd Dept.1997)). NY Vehicle & Traffic Law § 1129(a) states “The driver of a motor vehicle shall not follow another vehicle more ......
-
Vainer v. DiSalvo
...see Thompson v. Schmitt, 74 A.D.3d 789, 902 N.Y.S.2d 606; Mohammad v. Ning, 72 A.D.3d 913, 915, 899 N.Y.S.2d 356; Bolta v. Lohan, 242 A.D.2d 356, 661 N.Y.S.2d 286), a driver who has the right-of-way is entitled to anticipate that the other motorist will obey the traffic law requiring him or......