Feder v. Greco

240 A.D.2d 364, 658 N.Y.S.2d 111, 1997 N.Y. App. Div. LEXIS 5799

Opinion

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 AD2d 754; McGraw v Ranieri, 202 AD2d 725). Copertino, J. P., Thompson, Santucci and Friedmann, JJ., concur.