Gerdvil v. Tarnowski
Decision Date | 18 September 2007 |
Docket Number | 2006-09917.,2006-09082.,2006-03451. |
Citation | 2007 NY Slip Op 06831,842 N.Y.S.2d 71,43 A.D.3d 995 |
Parties | THERESA GERDVIL et al., Appellants, v. LUKE E. TARNOWSKI et al., Respondents. |
Court | New York Supreme Court — Appellate Division |
Ordered that one bill of costs is awarded to the defendants appearing separately and filing separate briefs.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment and resettled judgment in the action (see Matter of Aho, 39 NY2d 241 [1976]). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the resettled judgment (see CPLR 5501 [a] [1]). Moreover, the judgment was superseded by the resettled judgment.
Under the facts of this case, the jury could have reasonably concluded that although the defendant driver was negligent in entering an intersection in violation of Vehicle and Traffic Law § 1143, requiring him to yield the right of way to vehicles traveling on Central Avenue, his negligence was not a substantial factor in causing the accident. Rather, the jury reasonably could have found, based upon the plaintiff Theresa Gerdvil's varying accounts of where the defendants' vehicle came from, and the defendant driver's testimony that he was stopped at the time of the collision, that the accident resulted from Theresa Gerdvil's not seeing what was there to be seen, and that the position of the defendants'...
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