On December 30, 2016 a
Letter,Correspondence
was filed
involving a dispute between
Susan E. Transue,
and
City Of Binghamton,
Edith Osaheni,
Sarah E. Osaheni,
for Torts - Motor Vehicle
in the District Court of Broome County.
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SCHIMMERLING LAWOFFICES
ATTORNEY S AND COUNSELORS AT LAW
102 West Maim Street
Endicott,New Wrk 13760
(607) 785,8888
Fax No.(607) 785-8886
Themes E Schimmerllag, £se 607lawofkw@gmalLeam
www.nylawhdp.com
Also a Memberof the Pe-myt± amt FloridaBars
REPLY TO: ENDICOTT
October 23, 2019
Hon. Jeffery A. Tait
Supreme Court Justice
Broome County Supreme Court
P.O. Box 1766
Binghamton, NY 13902-1766
RE: Transue vs. Osaheni and Osaheni
Index No. EFCA2016002979/RJI 2017-1057-C
Dear Justice Tait:
I am writing to address a few preliminary matters in advance of our trial next week.
In the interest ofjudicial economy, plaintiffis willing to stipulatethat the City ofBinghamton
placed a stop sign at the intersection of Murray Street and Irroy Street, and that this stop sign was
not in place at the time of the accident.
My letter to the Court in advance of our pre-trial conference incorrectly stated that Murray
Street was a designated one-way street. Actually Murray Street does not become a one-way street
until one proceeds to the other side of the intersection with Leroy Street. This however, has no
bearing on the liability issues involved in this case.
Additionally, in the event that the testimony goes as I anticipate itwill, I would ask that the
Court charge thejury as follows:
PJI 2:71 Proximate Cause-Concurrent Causes
There may be more than one cause of an injury. Where the indep;sd;nt and negligent
acts or omissions of two or more parties cause injury to another, each of those negligsat acts
or emi•sions is regarded as a cause of that injury provided that it was a substantial factor in
bringing about that injury.
PJI 2:77 Motor Vehicle Accidents-Duty Toward Other Motorists, In General
It was the duty of each of the drivers to aparate (his, her) set:::5ik with reasonable
care taking into account the actual and potential dsagars existing from weather, road, traffic
and other conditions. Each of them was under a duty to maintain a rease=ab!y safe rate of
speed; to have (his, her) au±:=:bits under reasonable control; to keep a proper leekeet under
the eircumstances then existing to see and be aware of what was in (his, her) view; and to use
reasonable care to avoid an accident.
PJI 2:78 Motor Vehicle Accidents-Collision at Uncontrolled Intersection
Neither driver could properly enter the intersection where the collision occured
without giving attention to the other car that was approaching it Each of them was required,
before entering the intersection, to look with due care in both directions from a point or points
where(he,she) could see a vehicle approaching on the intersecting road; to use reasonable care
under allthe circumstances to determine ifa vehicle was approaching; to make a reasonable
effort to avoid a co!Ihion3 and to obey the Vehicle and Traffic Law. Section 1140 of the Vehicle
and Traffic Law provides:
"(a) The driver of a vehicle approaching an intersection shall yield the right of way
to a vehicle which has entered the intersection from a different highway.
"(b) When two vehicles enter an intersection from differenthighways at approximately
the same time the driver of the vehicle on the left shall yield the right of way to the vehicle on
right."
the
This rule concerning, the right of way is not inflexible and absolute. It is applied when
other considerations are substantially equal. If the two vehicles are so near the intersecting
point that there isa chance of collision ifboth maintain their respective speeds, then the vehicle
approaching from the left must slow down or stop to permit the vehicle approaching from the
right to proceed.
PJI 2:29 Statutory Standard of Care-Ordinances or Regulations
Plaintiff claims that the defendant violated a city ordinance. If you find that the
defendant violated the ordinance, you may consider the violation as some evidence of
negligence, along with the other evidence in the case, provided that such violation was a
substantial factor in bringing about the accident.
Section 14 of the Traffic Code of the City of Binghamton provides in part as follows:
Stopping before entering through street
B. Every driver of a vehicle shall, unless otherwise directed by a police officer or
traffic control signal, before entering a street designated as a through street, bring such
vehicle to a complete stop.
PJI 2:80B Motor Vehicle Accidents-Duties of Motorists
Where Stop Sign is Missing or Obscured
In this case, defendant contends that the stop sign was missing. The first question for
you to decide iswhether the stop sign was in place. If you find that itwas, defendant's failure
to stop was negligence. If you find that itwas not, you must decide whether defendant knew
or in the use of reasonable care should have known that the intersecting highway was a
through highway. If you find that defêñdant knew or shen!d have known that fact,
dcfcadant's failure to stop was neg";pnce. If you find that defendant did not know and had
no reason to know that the intersecting road was a through highway, you must then decide
whether defcadant was negligent under the usual right-of-way rule that I just gave you.
With respect to the last charge, the Court can of course charge the jury that regarding the first
question the parties stipulate that the stop sign was in fact not in place.
Finally, plaintiff would like to request that the Court takejudicial notice ofthe factthat Leroy Street
isdesignated as through street by the City of Binghamton and that Murray Street is designated as an
intersecting street.
Very truly yours,
SCHI ERLING LAW OFFICES
Th nas'E. schimmerhng
TES:rp
Enclosure
cc: Keith D. Miller, Esq.
Document Filed Date
October 23, 2019
Case Filing Date
December 30, 2016
Category
Torts - Motor Vehicle
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SCHIMMERLING LAWOFFICES ATTORNEY S AND COUNSELORS AT LAW 102 West Maim Street Endicott,New Wrk 13760 (607) 785,8888 Fax No.(607) 785-8886 Themes E Schimmerllag, £se 607lawofkw@gmalLeam www.nylawhdp.com Also a Memberof the Pe-myt± amt FloridaBars REPLY TO: ENDICOTT October 23, 2019 Hon. Jeffery A. Tait Supreme Court Justice Broome County Supreme Court P.O. Box 1766 Binghamton, NY 13902-1766 RE: Transue vs. Osaheni and Osaheni Index No. EFCA2016002979/RJI 2017-1057-C Dear Justice Tait: I am writing to address a few preliminary matters in advance of our trial next week. In the interest ofjudicial economy, plaintiffis willing to stipulatethat the City ofBinghamton placed a stop sign at the intersection of Murray Street and Irroy Street, and that this stop sign was not in place at the time of the accident. My letter to the Court in advance of our pre-trial conference incorrectly stated that Murray Street was a designated one-way street. Actually Murray Street does not become a one-way street until one proceeds to the other side of the intersection with Leroy Street. This however, has no bearing on the liability issues involved in this case. Additionally, in the event that the testimony goes as I anticipate itwill, I would ask that the Court charge thejury as follows: PJI 2:71 Proximate Cause-Concurrent Causes There may be more than one cause of an injury. Where the indep;sd;nt and negligent acts or omissions of two or more parties cause injury to another, each of those negligsat acts or emi•sions is regarded as a cause of that injury provided that it was a substantial factor in bringing about that injury. PJI 2:77 Motor Vehicle Accidents-Duty Toward Other Motorists, In General It was the duty of each of the drivers to aparate (his, her) set:::5ik with reasonable care taking into account the actual and potential dsagars existing from weather, road, traffic and other conditions. Each of them was under a duty to maintain a rease=ab!y safe rate of speed; to have (his, her) au±:=:bits under reasonable control; to keep a proper leekeet under the eircumstances then existing to see and be aware of what was in (his, her) view; and to use reasonable care to avoid an accident. PJI 2:78 Motor Vehicle Accidents-Collision at Uncontrolled Intersection Neither driver could properly enter the intersection where the collision occured without giving attention to the other car that was approaching it Each of them was required, before entering the intersection, to look with due care in both directions from a point or points where(he,she) could see a vehicle approaching on the intersecting road; to use reasonable care under allthe circumstances to determine ifa vehicle was approaching; to make a reasonable effort to avoid a co!Ihion3 and to obey the Vehicle and Traffic Law. Section 1140 of the Vehicle and Traffic Law provides: "(a) The driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection from a different highway. "(b) When two vehicles enter an intersection from differenthighways at approximately the same time the driver of the vehicle on the left shall yield the right of way to the vehicle on right." the This rule concerning, the right of way is not inflexible and absolute. It is applied when other considerations are substantially equal. If the two vehicles are so near the intersecting point that there isa chance of collision ifboth maintain their respective speeds, then the vehicle approaching from the left must slow down or stop to permit the vehicle approaching from the right to proceed. PJI 2:29 Statutory Standard of Care-Ordinances or Regulations Plaintiff claims that the defendant violated a city ordinance. If you find that the defendant violated the ordinance, you may consider the violation as some evidence of negligence, along with the other evidence in the case, provided that such violation was a substantial factor in bringing about the accident. Section 14 of the Traffic Code of the City of Binghamton provides in part as follows: Stopping before entering through street B. Every driver of a vehicle shall, unless otherwise directed by a police officer or traffic control signal, before entering a street designated as a through street, bring such vehicle to a complete stop. PJI 2:80B Motor Vehicle Accidents-Duties of Motorists Where Stop Sign is Missing or Obscured In this case, defendant contends that the stop sign was missing. The first question for you to decide iswhether the stop sign was in place. If you find that itwas, defendant's failure to stop was negligence. If you find that itwas not, you must decide whether defendant knew or in the use of reasonable care should have known that the intersecting highway was a through highway. If you find that defêñdant knew or shen!d have known that fact, dcfcadant's failure to stop was neg";pnce. If you find that defendant did not know and had no reason to know that the intersecting road was a through highway, you must then decide whether defcadant was negligent under the usual right-of-way rule that I just gave you. With respect to the last charge, the Court can of course charge the jury that regarding the first question the parties stipulate that the stop sign was in fact not in place. Finally, plaintiff would like to request that the Court takejudicial notice ofthe factthat Leroy Street isdesignated as through street by the City of Binghamton and that Murray Street is designated as an intersecting street. Very truly yours, SCHI ERLING LAW OFFICES Th nas'E. schimmerhng TES:rp Enclosure cc: Keith D. Miller, Esq.