Kernaghan v. Fisher

50 A.D.2d 695, 375 N.Y.S.2d 459, 1975 N.Y. App. Div. LEXIS 12549

Opinion

— Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court at Special Term, entered in Schenectady County) to review a determination of the Commissioner of Motor Vehicles revoking the petitioner’s driver’s license. Petitioner was driving a car involved in an accident in Schenectady, New York on December 6, 1972 at about 6:00 a.m. near the intersection of Erie Boulevard and Pine Street that resulted in the death of a pedestrian, Florence Caracciolo. A hearing was held pursuant to section 510 of the Vehicle and Traffic Law to investigate the accident. The referee recommended the revocation of petitioner’s license for violation of section 1154 of the Vehicle and Traffic Law. On appeal, the administrative appeals board recommended that the determination of the referee be affirmed. Thereafter and on September 27, 1974, the Commissioner revoked petitioner’s license for violation of section 1154 of the Vehicle and Traffic Law. We annul the determination revoking petitioner’s license on the ground there is no substantial evidence to support the Commissioner’s finding. The referee found that the decedent was crossing the street in an area normally reserved for a crosswalk; however, the evidence introduced at the hearing indicated the accident occurred 75 to 85 feet beyond the intersection where pedestrians were not expected to cross this four-lane highway. The referee indicated by implication that petitioner proceeded through a red light at the intersection of Erie Boulevard and Pine Street.' This implied finding was accepted and emphasized by the administrative appeals board. There is no evidence to support this finding. The failure of petitioner to sound his horn when confronted with the sudden emergency under the circumstances disclosed by the evidence was not a violation of section 1154 of the Vehicle and Traffic Law. (See Chiappone v Greenebaum, 189 App Div 579.) Determination annulled, with costs, and matter remitted with a direction that respondent reinstate petitioner’s license. Herlihy, P. J., Greenblott, Sweeney, Kane and Reynolds, JJ, concur.