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DEFENDANT IN THIS INTERSECTION TRAFFIC ACCIDENT HAD THE RIGHT OF WAY WHEN THE TRUCK IN WHICH PLAINTIFF WAS A PASSENGER APPARENTLY FAILED TO YIELD THE RIGHT OF WAY AND PULLED INTO DEFENDANT’S PATH; THE MAJORITY HELD THERE WAS A QUESTION OF FACT WHETHER DEFENDANT SAW WHAT SHE SHOULD HAVE SEEN; THE DISSENTERS ARGUED DEFENDANT SHOULD HAVE BEEN AWARDED SUMMARY JUDGMENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined plaintiff was not entitled to summary judgment in this intersection traffic accident case. Plaintiff was a passenger in a truck which apparently failed to yield the right of way and pulled into the path of defendant’s car. The majority held there was a question of fact whether defendant saw what she should have seen when approaching the intersection. The dissenters argued defendant was entitled to assume the truck would yield the right of way:

” It is well settled that a driver who has the right-of-way is entitled to anticipate that drivers of other vehicles will obey the traffic laws requiring them to yield’ ” ( … see Vehicle and Traffic Law § 1142 [a]). “Nevertheless, a driver cannot blindly and wantonly enter an intersection . . . but, rather, is bound to use such care to avoid [a] collision as an ordinarily prudent [motorist] would have used under the circumstances” … . Here, defendant’s own submissions, including her own deposition testimony, raised an issue of fact whether she met her “duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident” … . Brooks v Davis, 2020 NY Slip Op 04021,, Fourth Dept 7-17-20

 

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PLAINTIFF PRESENTED CLEAR AND CONVINCING EVIDENCE SUPPORTING THE CAUSES OF ACTION... DECISION ON APPEAL RESERVED AND MATTER REMITTED FOR A DETERMINATION WHETHER...