McClelland v. Seery

261 A.D.2d 451, 690 N.Y.S.2d 97

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 10, 1999
• Status: Published

Opinions

—In two consolidated actions to recover damages for personal injuries, etc., the defendants Jennifer Newman and Bernard Newman appeal from an interlocutory judgment of the Supreme Court, Nassau County (DeMaro, J.), entered December 8, 1997, which, upon a jury verdict finding the defendants John F. Seery and Christine M. Seery 100% at fault in the happening of the accident and upon an order of the same court entered October 6,1997, granting the separate motions of the defendants Seery and the plaintiffs to set aside the verdict, set aside the verdict and granted judgment as a matter of law to the plaintiff finding the defendants Jennifer Newman and Bernard Newman 100% at fault in the happening of the accident, as a matter of law, and dismissed the complaints insofar as asserted against John F. Seery and Christine M. Seery, and the plaintiffs separately appeal from so much of the same interlocutory judgment as dismissed the complaints insofar as asserted ■ against John F. Seery and Christine M. Seery.

Ordered that the interlocutory judgment is affirmed, with one bill of costs payable by the appellants.

Undisputed evidence established that the defendant Jennifer Newman failed to yield the right of way to the defendant John F. Seery after stopping at a stop sign controlling traffic, in violation of Vehicle and Traffic Law § 1142 (a), and that her negligence was the proximate cause of the collision (see, Rumanov v Greenblatt, 251 AD2d 566; Ponticello v Wilhelm, 249 AD2d 459; Bolta v Lohan, 242 AD2d 356; Nunziata v Birchell, 238 AD2d 555; Dellavecchia v Zorros, 231 AD2d 549).

Contrary to the plaintiffs’ and the Newmans’ speculation that John F. Seery was contributorily negligent, the record is devoid of evidence that Mr. Seery was speeding or could have avoided the collision. Mr. Seery testified that he was traveling under the posted speed limit, and the only testimony to the contrary was a speed estimate made by Jennifer Newman, who, at the time of the accident, was 17 years old and had been driving by herself for less than one month. Further, Jennifer Newman admitted that she entered the intersection, despite the fact that her view was obstructed. After entering the intersection far enough to see the roadway, it was too late, as the Seery vehicle was two to three seconds from impact. Immediately prior to the collision, Mr. Seery reduced his speed, but could not have foreseen that the Newmans’ vehicle would abruptly pull out in front of his vehicle (see, Snow v Howe, 253 AD2d 870; Maxwell v Land-Saunders, 233 AD2d 303). O’Brien, J. P., Joy and Krausman, JJ., concur.