SMALLEY v. William A. Humphreys, Defendant-Respondent.

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Supreme Court, Appellate Division, Second Department, New York.

Linda SMALLEY, Plaintiff-Respondent, v. August McCARTHY, et al., Appellants, William A. Humphreys, Defendant-Respondent.

Decided: October 26, 1998

Before RITTER, J.P., and THOMPSON, PIZZUTO and McGINITY, JJ. Mark A. Longo, Brooklyn (Steven J. Mines, of counsel), for appellants. Livoti, Bernstein & Moraco, New York City (Benjamin Robinson and Barry Bernstein, of counsel), for plaintiff-respondent. James A. McCarthy, P.C. (Majewski & Poole, LLP, Garden City [Michael Majewski and Nicole Norris Poole], of counsel), for defendant-respondent.

In an action to recover damages for personal injuries, the defendants August McCarthy and Kathleen A. McCarthy appeal from (1) a decision of the Supreme Court, Kings County (Archer, J.), dated October 6, 1997, and (2) an order of the same court, dated October 10, 1997, which, sua sponte, set aside a jury verdict in their favor and ordered a new trial.

 ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see, Schicchi v. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718);  and it is further,

ORDERED that on the court's own motion, the appellants' notice of appeal from the order is treated as an application for leave to appeal, and leave to appeal is granted (see, CPLR 5701[c] );  and it is further,

ORDERED that the order is affirmed;  and it is further,

ORDERED that the respondents are awarded one bill of costs.

 The trial court's decision to set aside the jury verdict finding that the defendant Kathleen A. McCarthy was not negligent in the operation of her automobile and to order a new trial was not erroneous since such a finding could not be reached “on any fair interpretation of the evidence” (Nicastro v. Park, 113 A.D.2d 129, 134, 495 N.Y.S.2d 184).   Ms. McCarthy testified that she did not see the plaintiff's car approaching the intersection from the opposite direction, and did not yield the right-of-way in accordance with Vehicle and Traffic Law § 1141.   Thus, Ms. McCarthy was negligent in either failing to see that which under the facts and circumstances she should have seen, or in crossing in front of the plaintiff's vehicle when it was hazardous to do so (see, Spells v. Lewis, 197 A.D.2d 888, 889, 604 N.Y.S.2d 855; Burns v. Mastroianni, 173 A.D.2d 754, 755, 570 N.Y.S.2d 629;  Hernandez v. Joseph, 143 A.D.2d 632, 533 N.Y.S.2d 13;  Lester v. Jolicofur, 120 A.D.2d 574, 502 N.Y.S.2d 61;  Kiernan v. Edwards, 97 A.D.2d 750, 468 N.Y.S.2d 381).


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