Cupp v. McGaffick, 104 A.D.3d 1283 (N.Y. App. Div. 2013). · Go Syfert
Cupp v. McGaffick, 104 A.D.3d 1283 (N.Y. App. Div. 2013). Cases Citing This Book View Copy Cite
16 citation events (16 in the last 25 years) across 1 distinct court.
Strongest positive: Brown v. City of Buffalo (nyappdiv, 2025-06-27)
Top citers, strongest first. 11 distinct citers. How cited ↗
examined Cited as authority (rule) Brown v. City of Buffalo (4×)
N.Y. App. Div. · 2025 · confidence medium
Muktar (defendant) was entitled to anticipate that the driver of the Honda would stop at the stop sign and yield the right-of-way to him ( see Deering v Deering , 134 AD3d 1497, 1498 [4th Dept 2015]; Dorr v Farnham , 57 AD3d 1404, 1405-1406 [4th Dept 2008]), in moving for summary judgment, defendant had the burden of establishing that he was free of comparative fault ( see Deering , 134 AD3d at 1498 ; Cooley v Urban , 1 AD3d 900, 901 [4th Dept 2003]). "[I]t is well settled that 'drivers have a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an a…
discussed Cited as authority (rule) Murray v. Sminkey
N.Y. App. Div. · 2021 · confidence medium
As relevant to Stio's potential liability here, "it is well settled that 'drivers have a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident' " ( Cupp v McGaffick , 104 AD3d 1283, 1284 [4th Dept 2013]; see Deering v Deering , 134 AD3d 1497, 1499 [4th Dept 2015]).
discussed Cited as authority (rule) Sims v. Ciccone-Burton
N.Y. App. Div. · 2018 · confidence medium
And next thing [she] knew there was a crack on [her windshield]." Far from constituting a nonnegligent explanation for the crash, the driver's deposition testimony conclusively establishes her own negligence, i.e., that she breached her " duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident' " ( Cupp v McGaffick , 104 AD3d 1283, 1284 [4th Dept 2013]).
discussed Cited as authority (rule) Deering v. Deering
N.Y. App. Div. · 2015 · confidence medium
At his deposition, defendant testified that he saw the Deering vehicle at the intersection after he traveled over an elevated overpass on Route 5 that is ap proximately 300 yards from the intersection, but he looked away and did not see the Deering vehicle before or at the moment of impact. “[I]t is well settled that ‘drivers have a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident,’ ” and defendant’s admitted failure to see the Deering vehicle immediately prior to the accident raises an issue of fact whether he violated that…
discussed Cited as authority (rule) Deering v. Deering
N.Y. App. Div. · 2015 · confidence medium
At his deposition, defendant testified that he saw the Deering vehicle at the intersection after he traveled over an elevated overpass on Route 5 that is ap proximately 300 yards from the intersection, but he looked away and did not see the Deering vehicle before or at the moment of impact. “[I]t is well settled that ‘drivers have a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident,’ ” and defendant’s admitted failure to see the Deering vehicle immediately prior to the accident raises an issue of fact whether he violated that…
discussed Cited as authority (rule) Coffed v. McCarthy
N.Y. App. Div. · 2015 · confidence medium
Defendant had an obligation to “ ‘see what should be seen and to exercise reasonable care under the circumstances to avoid an accident’ ” (Cupp v McGaffick, 104 AD3d 1283, 1284 [2013]), including in particular a collision with a bicyclist (see Vehicle and Traffic Law § 1146 [a]).
discussed Cited as authority (rule) Coffed v. McCarthy
N.Y. App. Div. · 2015 · confidence medium
Defendant had an obligation to “ ‘see what should be seen and to exercise reasonable care under the circumstances to avoid an accident’ ” (Cupp v McGaffick, 104 AD3d 1283, 1284 [2013]), including in particular a collision with a bicyclist (see Vehicle and Traffic Law § 1146 [a]).
discussed Cited as authority (rule) MOORE, SHELLY F. v. CURTISS, NANCY A.
N.Y. App. Div. · 2015 · confidence medium
Nevertheless, viewing the submissions of the parties in the light most favorable to plaintiff and Cox, as we must (see Victor Temporary Servs. v Slattery, 105 AD2d 1115, 1117 [1984]), we conclude that the submissions of Curtiss in support of her motion raise an issue of fact whether she failed to see Cox’s turn signal and thus failed to “ ‘exercise reasonable care under the circumstances to avoid an accident’ ” (Cupp v McGaffick, 104 AD3d 1283, 1284 [2013]).
discussed Cited "see" Oswald v. Ramesh
N.Y. App. Div. · 2025 · signal: see · confidence high
Indeed, "[f]ar from constituting a nonnegligent explanation for the crash, the driver's deposition testimony conclusively establishes [his] own negligence, i.e., that [he] breached [the] duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident" ( Sims v Ciccone-Burton , 167 AD3d 1541 , 1543 [4th Dept 2018] [internal quotation marks omitted]; see Cupp v McGaffick , 104 AD3d 1283, 1284 [4th Dept 2013]; Roberts v Hall , 248 AD2d 845, 845 [3d Dept 1998]).
discussed Cited "see" Putnam v. Kibler
N.Y. App. Div. · 2024 · signal: see · confidence high
To meet that burden, defendant was required to establish that he fulfilled his "common-law duty to see that which he should have seen [as a driver] through the proper use of his senses" ( Luttrell v Vega , 162 AD3d 1637 , 1638 [4th Dept 2018] [internal quotation marks omitted]; see Sauter v Calabretta , 90 AD3d 1702, 1703 [4th Dept 2011]) "and to exercise reasonable care under the circumstances to avoid an accident" ( Deering v Deering , 134 AD3d 1497 , 1499 [4th Dept 2015] [internal quotation marks omitted]; see Cupp v McGaffick , 104 AD3d 1283 , 1284 [4th Dept 2013]).
discussed Cited "see" Pagels v. Mullen
N.Y. App. Div. · 2018 · signal: see · confidence high
To meet that burden, defendant was required to establish that he fulfilled his "common-law duty to see that which he should have seen [as a driver] through the proper use of his senses" ( Luttrell v Vega , 162 AD3d 1637 , 1638 [4th Dept 2018] [internal quotation marks omitted]; see Sauter v Calabretta , 90 AD3d 1702, 1703 [4th Dept 2011]), "and to exercise reasonable care under the circumstances to avoid an accident" ( Deering v Deering , 134 AD3d 1497 , 1499 [4th Dept 2015] [internal quotation marks omitted]; see Cupp v McGaffick , 104 AD3d 1283 , 1284 [4th Dept 2013]), including that he met …
Retrieving the full opinion text from the archive…
Jeremy Cupp
v.
Edward McGaffick
Appellate Division of the Supreme Court of the State of New York.
Mar 22, 2013.
104 A.D.3d 1283
Cited by 12 opinions  |  Published

Appeal from an order of the Supreme Court, Monroe County (Thomas M. Van Strydonck, J.), entered November 30, 2011. The order denied plaintiffs motion for partial summary judgment.

It is hereby ordered that the order so appealed from is unanimously reversed on the law without costs and the motion is granted.

Memorandum: Plaintiff commenced this action seeking damages for personal injuries he sustained as a result of an accident in which his motorcycle was struck by a tractor-trailer that was owned by VanSantis Development, Inc. and operated by Edward McGaffick (collectively, defendants). Plaintiff appeals from an order denying his motion for partial summary judgment on the issue of negligence. We agree with plaintiff that Supreme Court erred in denying the motion, and we therefore reverse the order and grant the motion.

The Vehicle and Traffic Law provides that “[t]he 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” (Vehicle and Traffic Law § 1129 [a]). In support of the motion, plaintiff submitted his deposition testimony and that of McGaffick, wherein they each testified that the tractor-trailer operated by McGaffick struck plaintiffs motorcycle from the rear while the two vehicles proceeded in the right lane of traffic on the New York State Thruway. Thus, “plaintiff! ] established [his] prima facie entitlement to judgment as a matter of law by demonstrating, through [his] deposition testimony, that [his] vehicle was traveling within one lane of traffic at all times when it was struck in the rear by [McGaffick’s] vehicle” (Scheker v Brown, 85 AD3d 1007, 1007 [2011]; see Nsiah-Ababio v Hunter, [*1284] 78 AD3d 672, 672-673 [2010]; see also Atkinson v Safety Kleen Corp., 240 AD2d 1003, 1004 [1997]; cf. Maxwell v Lobenberg, 227 AD2d 598, 598-599 [1996]). Additionally, it is well settled that “drivers have a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident” (Byrne v Calogero, 96 AD3d 704, 705 [2012]; see Johnson v Phillips, 261 AD2d 269, 271 [1999]). McGaffick’s deposition testimony that he did not see plaintiff’s motorcycle before the collision establishes that he violated that duty.

Defendants’ submission of McGaffick’s deposition testimony that it was rainy and dark and that plaintiff was wearing dark clothing did not raise a triable issue of fact in opposition to the motion. “Even according full credit to the defendants’ version of the accident, it was insufficient to raise a triable issue of fact in light of the circumstances of the accident” (Volpe v Limoncelli, 74 AD3d 795, 795 [2010]; see also Faul v Reilly, 29 AD3d 626, 626 [2006]; Downs v Toth, 265 AD2d 925, 925 [1999]). “When a driver approaches another vehicle from the rear, he is bound to maintain a reasonably safe rate of speed and to . . . compensate for any known adverse road conditions” (Young v City of New York, 113 AD2d 833, 834 [1985]; see Downs, 265 AD2d at 925). In addition, plaintiff testified at his deposition that his motorcycle lights were illuminated, and defendants introduced no evidence to the contrary. Consequently, the court erred in denying the motion. Present — Smith, J.P., Peradotto, Garni, Valentino and Martoche, JJ.