Kasna v. Rodriguez

• Decision Date: 16 November 1981
• Parties: Carol KASNA, et al., Appellants-Respondents, v. Adriano RODRIGUEZ, Respondent-Appellant. (And a second title).
• Court: New York Supreme Court — Appellate Division

Page 31

444 N.Y.S.2d 31

84 A.D.2d 782

Carol KASNA, et al., Appellants-Respondents, v. Adriano RODRIGUEZ, Respondent-Appellant. (And a second title).

Supreme Court, Appellate Division,

Second Department.

Nov. 16, 1981.

Kelner & Kelner, New York City (Martin Rubenstein, New York City, of counsel), for appellants-respondents.

Diamond, Rutman & Costello, New York City (Siff & Newman, P. C., New York City, Steven DiJoseph and Audrey Rogers, New York City, of counsel), for respondent-appellant.

Before HOPKINS, J. P., and GIBBONS, RABIN and COHALAN, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, etc., plaintiffs appeal from so much of an interlocutory judgment of the Supreme Court, Queens County, entered March 20, 1981, as upon a jury verdict, adjudged that plaintiff Carol Kasna was 90% liable, and defendant purports to cross appeal from that part of the interlocutory judgment as adjudged that he was 10% liable.

Cross appeal dismissed, without costs or disbursements. The cross appeal was not perfected in accordance with the rules of this court (see Howe Ave. Nursing Home v. Nafus, 54 A.D.2d 686, 387 N.Y.S.2d 272).

Interlocutory judgment reversed, on the law and the facts, and new trial, granted, with costs to abide the event.

This case involves a two-car collision between a car driven by plaintiff Carol Kasna (plaintiff) eastward on Crocheron Avenue, and a car driven by defendant Adriano Rodriguez northward on 167th Street in Queens. At the trial, Mrs. Kasna testified that as she approached the intersection she looked to her right, saw defendant's vehicle about two car lengths behind a stop sign on 167th Street, and assumed defendant would stop. Defendant testified that he stopped at the stop sign, and saw plaintiff's vehicle 40 to 45 feet from the intersection. Defendant decided to proceed through the intersection, but his car "hesitateand plaintiff's vehicle struck him.

Plaintiff had the right to assume that defendant would obey the mandate of the stop sign, and stop until she could proceed safely (see Mansfield v. Graff, 47 A.D.2d 581, 363 N.Y.S.2d 172; Casiano v. Weinstein and Son Floor Covering Corp., 37 A.D.2d 564, 322 N.Y.S.2d 497). Defendant's obligation was to yield the right of way to any vehicle approaching the intersection "so closely * * * as to constitute an immediate hazard" (see Vehicle and Traffic Law, § 1142, subd. Defendant's own testimony indicated that he proceeded into the...