Feder v. Greco

• Decision Date: 02 June 1997
• Parties: Sharon FEDER, et al., Respondents, v. Joseph GRECO, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 111

658 N.Y.S.2d 111

240 A.D.2d 364

Sharon FEDER, et al., Respondents, v. Joseph GRECO, et al., Appellants.

Supreme Court, Appellate Division,

Second Department.

June 2, 1997.

Rivkin, Radler & Kremer, Uniondale, (Evan H. Krinick and Merril Schapiro Biscone, of counsel), for appellant Joseph Greco.

McCabe & Cozzens, Mineola, (Michelle M. Doss, on the brief), for appellant General Electric Capital Auto Lease, Inc.

Shayne, Dachs, Stanisci, Corker & Asuer, Mineola, (Jonathan A. Dachs, of counsel), for respondents.

Before COPERTINO, J.P., and THOMPSON, SANTUCCI and FRIEDMANN, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, etc., the defendants separately appeal from an order of the Supreme Court, Nassau County (Winick, J.), dated May 28, 1996, which granted the plaintiffs' motion for partial summary judgment on the issue of liability.

ORDERED that the order is affirmed, with one bill of costs.

The undisputed facts, as testified to by the defendant Joseph Greco at his examination before trial, establish that Greco, as he was making a left turn across a southbound road, was struck by the plaintiffs' vehicle, which was travelling on the southbound road. Although Greco testified that he did not see the plaintiffs' car, which "came out of nowhere", he also testified that the plaintiffs' car struck his vehicle approximately one second after he started to turn, when he was only about five feet into the intersection.

Under such circumstances, Greco was clearly negligent in failing to see that which, under the facts and circumstances, he should have seen by the proper use of his senses. Accordingly, we agree with the Supreme Court that the plaintiffs are entitled to partial summary judgment on the issue of liability (see, Burns v. Mastroianni, 173 A.D.2d 754, 570 N.Y.S.2d 629; McGraw v. Ranieri, 202 A.D.2d 725, 608 N.Y.S.2d 577).