Case v. Nitzberg

Appellate Division of the Supreme Court of New York

Case v. Nitzberg

245 A.D.2d 1069, 666 N.Y.S.2d 76, 1997 N.Y. App. Div. LEXIS 13837

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 31, 1997

StatusPublished

This text of 245 A.D.2d 1069 (Case v. Nitzberg) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Case v. Nitzberg, 245 A.D.2d 1069, 666 N.Y.S.2d 76, 1997 N.Y. App. Div. LEXIS 13837 (N.Y. Ct. App. 1997).

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Opinion

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied defendant’s motion for summary judgment dismissing the complaint. While driving past a posted worksite, defendant struck Clifford W. Case (plaintiff), an employee of third-party defendant, Syracuse Utilities, Inc., who was running cable between utility poles alongside the road. Although there is proof that plaintiff inadvertently stepped into defendant’s path from behind a truck parked one foot off the road, a jury could find that a proximate cause of the accident was defendant’s inattention and failure to give the truck a wide berth within defendant’s lane. “When warned of the presence of workers, a motorist must be cognizant of the fact that they may not constantly attend to traffic, and must operate his vehicle accordingly” (78 Am Jur 2d, Automobiles and Highway Traffic, § 689, at 260 [1997 ed]). Whether defendant acted reasonably under the circumstances cannot be determined as a matter of law (see, Ugarriza v Schmieder, 46 NY2d 471, 473). (Appeal from Order of Supreme Court, Onondaga County, Stone, J.— Summary Judgment.) Present—Green, J. P., Pine, Wisner, Callahan and Fallon, JJ..

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—Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied defendant’s motion for summary judgment dismissing the complaint. While driving past a posted worksite, defendant struck Clifford W. Case (plaintiff), an employee of third-party defendant, Syracuse Utilities, Inc., who was running cable between utility poles alongside the road. Although there is proof that plaintiff inadvertently stepped into defendant’s path from behind a truck parked one foot off the road, a jury could find that a proximate cause of the accident was defendant’s inattention and failure to give the truck a wide berth within defendant’s lane. “When warned of the presence of workers, a motorist must be cognizant of the fact that they may not constantly attend to traffic, and must operate his vehicle accordingly” (78 Am Jur 2d, Automobiles and Highway Traffic, § 689, at 260 [1997 ed]). Whether defendant acted reasonably under the circumstances cannot be determined as a matter of law (see, Ugarriza v Schmieder, 46 NY2d 471, 473). (Appeal from Order of Supreme Court, Onondaga County, Stone, J.— Summary Judgment.) Present—Green, J. P., Pine, Wisner, Callahan and Fallon, JJ..

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Bluebook (online)

245 A.D.2d 1069, 666 N.Y.S.2d 76, 1997 N.Y. App. Div. LEXIS 13837, Counsel Stack Legal Research, https://law.counselstack.com/opinion/case-v-nitzberg-nyappdiv-1997.

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