Crisano v. Spellman, 01-07709

• Decision Date: 13 May 2002
• Docket Number: 2,01-07709
• Parties: Lucie Crisano, et al., respondents, v Barry R. Spellman, defendant, John D. Goldstein, appellant. (Index/99) 2001-07709 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT Submitted -
• Court: New York Supreme Court — Appellate Division

Lucie Crisano, et al., respondents, v Barry R. Spellman, defendant, John D. Goldstein, appellant.

(Index No. 3358/99)

2001-07709

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT

Submitted - April 23, 2002

Decided on May 13, 2002

McCarl & Harris, Montgomery, N.Y. (James R. McCarl of counsel), for appellant.

Richard J. Weiner, P.C., Nanuet, N.Y. (Neil S. Weiner of counsel), for respondents.

DECISION & ORDER

DAVID S. RITTER, J.P.

NANCY E. SMITH

DANIEL F. LUCIANO

STEPHEN G. CRANE, JJ.

In an action to recover damages for personal injuries, etc., the defendant John D. Goldstein appeals, as limited by his brief, from so much of an order of the Supreme Court, Orange County (Berry, J.), dated July 11, 2001, as denied that branch of his motion which was for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The evidence submitted in connection with the appellant's motion reveals the existence of triable issues of fact as to whether the appellant violated section 1160(b) of the Vehicle and Traffic Law, or was otherwise negligent in attempting to "cut the corner" while making a left-hand turn in the vicinity of the injured plaintiff's vehicle (see Boylan v Whitehouse, 229 App Div 372; Marshall v Richter, 227 App Div 830; cf. Dame v Hanly, 16 A.D.2d 997, 998) and, if he was negligent, whether such negligence was a proximate cause of the accident (see Derdiarian v Felix Contr. Corp., 51 N.Y.2d 308; Mitchum v Friend, 270 A.D.2d 841; Gross v New York City Tr. Auth., 256 A.D.2d 128, 130; Calderone v Harrel, 237 A.D.2d 318; Ferguson v Gassman, 229 A.D.2d 464, 465; Brogan v Zummo, 92 A.D.2d 533, 535; cf. Sheehan v City of New York, 40 N.Y.2d 496, 503; Dormena v Wallace, 282 A.D.2d 425, 427; Fiscella v Gibbs, 261 A.D.2d 572, 573-574).

The Supreme Court therefore properly denied that branch of the appellant's motion which was for summary judgment dismissing the complaint insofar as asserted against him.

RITTER, J.P., SMITH, LUCIANO and CRANE, JJ., concur.