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FRANCINE GASS v. WILLIAM J. FLYNN (09/13/68)

SUPREME COURT OF NEW YORK, SPECIAL TERM, KINGS COUNTY 1968.NY.42856 <http://www.versuslaw.com>; 293 N.Y.S.2d 791; 57 Misc. 2d 893 September 13, 1968 FRANCINE GASS, PLAINTIFF,v.WILLIAM J. FLYNN, DEFENDANT Francis M. De Caro for plaintiff. Henry H. Abrams for defendant. Abraham J. Multer, J. Author: Multer


Abraham J. Multer, J.

Author: Multer

 Motion by plaintiff for summary judgment striking the answer of the defendant and for assessment of damages.

The action is for personal injuries caused by the collision of two automobiles at the intersection of Flatbush Avenue and Glenwood Road in Brooklyn. There is no claim that plaintiff is guilty of any contributory negligence.

On July 16, 1966 at about 4:00 a.m. the plaintiff was a passenger in the front seat of a car owned and being driven by Evelyn Steiner (not a party to this action), which was proceeding in a northerly direction in the right driving lane of Flatbush Avenue approaching Glenwood Road.

Defendant states under oath that he was proceeding at a speed of 20 miles per hour as was the car in front of him in which plaintiff was a passenger; that he was proceeding two car lengths behind this car from Nostrand Avenue to the point of impact at Glenwood Road; as the car in front of him approached the intersection on Flatbush Avenue and Glenwood Road the light which had been green changed to "amber"; the driver of the car in front "stopped suddenly" at this intersection; defendant saw the light changing and "started to stop", but hit the other car in the rear.

In determining this motion the court can ignore the plaintiff's statement that the car she was in made a gradual stop in response to the red light and was in a stop position for approximately five seconds before defendant's vehicle struck the rear of the car in which she was riding.

Defendant's report over his signature states that the front of his car was smashed. The police blotter indicates defendant's car was towed away. Defendant does not contend otherwise. Defendant's report states the weather was clear, the road dry and lighted.

Section 1111 (subd. [b], par. 1) of the Vehicle and Traffic Law as in effect on the date of the accident provided:

"Steady yellow alone:

"1. Vehicular traffic facing such signal is thereby warned that the red signal will be exhibited immediately thereafter and such vehicular traffic shall not enter or be crossing the intersection when the red signal is exhibited."

Section 1129 of the Vehicle and Traffic Law provides:

"Following too closely:

"(a) The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway." Since defendant admits that he saw the light turn "amber" and that he started to slow down, no warning or signal by the driver of the car in which plaintiff was seated was necessary or required to indicate an intention to stop. The driver of the lead car as a prudent driver stopped on such signal as she was required to do. The defendant having observed the signal should have expected her to do so. He should have been prepared to do the same and to do so without ...


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