                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: October 23, 2014                     517428
________________________________

MARY MARGARET SMITH,
                    Respondent,
      v                                       MEMORANDUM AND ORDER

STATE OF NEW YORK,
                    Appellant.
________________________________


Calendar Date:   September 2, 2014

Before:   Lahtinen, J.P., Stein, McCarthy, Rose and Devine, JJ.

                               __________


      Eric T. Schneiderman, Attorney General, Albany (Frank Brady
of counsel), for appellant.

      Levene, Gouldin & Thompson, LLP, Binghamton (John L.
Perticone of counsel), for respondent.

                               __________


McCarthy, J.

      Appeal from a judgment of the Court of Claims (Schaewe,
J.), entered June 6, 2013, upon a decision of the court following
a bifurcated trial in favor of claimant on the issue of
liability.

      Claimant sustained personal injuries when the bicycle she
was riding collided with a marked State Police vehicle in the
Village of Whitney Point, Broome County. Claimant was riding
along a street that ends at a T intersection, and was just past
the stop sign but not yet into the intersection. The trooper was
driving on the other street when he began making a left turn onto
the street where claimant was riding. He cut the corner a little
sharp, and claimant collided with the troop car at a very shallow
angle in her own lane of travel. She was thrown from the
                               -2-                517428

bicycle, resulting in injuries.

      Claimant commenced this action against defendant based on
the trooper's negligence. After a bifurcated trial on the issue
of liability, the Court of Claims apportioned liability 70% to
defendant and 30% to claimant. Defendant appeals.1

      We affirm. When reviewing a determination after a nonjury
trial, this Court independently considers the weight of the
evidence and may grant whatever judgment is warranted by the
record, all while deferring to the trial judge's factual
findings, especially where those findings are based on
credibility determinations (see Town of Kinderhook v Slovak, 72
AD3d 1240, 1241 [2010]; Sherwood v Brock, 65 AD3d 738, 738-739
[2009]; Beckwith v State of New York, 42 AD3d 828, 829 [2007]).
Here, the Court of Claims made credibility determinations and
factual findings that were supported by "a fair and reasonable
interpretation of the evidence" (Town of Kinderhook v Slovak, 72
AD3d at 1241 [internal quotation marks and citation omitted]).
After weighing the eyewitness and expert testimony and
considering it along with the physical evidence, the court
determined that the collision occurred in claimant's lane of
travel, meaning that the trooper crossed at least somewhat into
claimant's lane in violation of Vehicle and Traffic Law § 1120
(a). "[A]n unexcused violation of the Vehicle and Traffic Law
constitutes negligence per se" (Feeley v St. Lawrence Univ., 13
AD3d 782, 783 [2004]; accord Aloi v County of Tompkins, 52 AD3d
1092, 1093 [2008]; see Hazelton v D.A. Lajeunesse Bldg. &
Remodeling, Inc., 38 AD3d 1071, 1072 [2007]). The court also
reasonably determined that the trooper was negligent in cutting
the corner while making his left turn, in violation of Vehicle
and Traffic Law § 1160 (b) (see Murphy v Epstein, 72 AD3d 767,


     1
        Although the notice of appeal indicates that defendant is
appealing from the May 30, 2013 decision, which is not an
appealable paper (see CPLR 5512 [a]), we exercise our discretion
to treat the notice of appeal as validly taken from the judgment
entered on June 6, 2013 (see CPLR 5520 [c]; Evans v State of New
York, 57 AD3d 1123, 1123-1124 n [2008], lv denied 12 NY3d 704
[2009]).
                              -3-                517428

768 [2010]; Boylan v Whitehouse, 229 App Div 372, 374 [1930]).
Considering the trooper's testimony that he never saw claimant
until the moment of impact, along with evidence regarding the
ample sight distance at the intersection and the legal concept
that every driver has a duty to see what is there to be seen
through the proper use of his or her senses (see Ranaudo v Key,
83 AD3d 1315, 1316 [2011]), the court properly found that the
trooper was additionally negligent for violating Vehicle and
Traffic Law § 1146 (a), which requires drivers to "exercise due
care to avoid colliding with any bicyclist" (see Matter of
Montagnino v Fiala, 106 AD3d 1090, 1091 [2013]; Shui-Kwan Lui v
Serrone, 103 AD3d 620, 620-621 [2013]; Brenner v Dixon, 98 AD3d
1246, 1248 [2012]).

      The Court of Claims assigned 30% liability to claimant
based on testimony regarding her speed and that she did not
appear to be slowing down as she approached the intersection,
despite her obligation to heed the stop sign (see Vehicle and
Traffic Law § 1231; Brenner v Dixon, 98 AD3d at 1247). Evidence
also established that claimant had a fairly clear sight line and
should have been able to see the troop car in time for her to
react and possibly avoid the collision. On the other hand,
claimant was required to move toward the center of the street in
order to avoid parked cars, such that she did not violate Vehicle
and Traffic Law § 1234 (a), which requires bicyclists to ride
near the right-hand curb. Furthermore, while the collision
occurred past the stop sign, it occurred before claimant entered
the intersection, rendering her in compliance with Vehicle and
Traffic Law § 1172 (a) (see Vehicle and Traffic Law § 120 [a]).
Thus, we defer to the apportionment of liability determined by
the Court of Claims.

     Lahtinen, J.P., Stein, Rose and Devine, JJ., concur.
                        -4-                  517428

ORDERED that the judgment is affirmed, with costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
