Huse v. Macduff , 284 A.D. 971 ( 1954 )

Proceeding under article 78 of the Civil Practice Act, to review the determination of respondent revoking petitioner’s chauffeur’s license, with a recommendation that no new license be issued for at least one year, for the violation of subdivision 1 of section 56 of the Vehicle and Traffic Law. The proceeding has been transferred to this court pursuant to section 1296 of the Civil Practice Act. Determination confirmed, without costs. No opinion. Nolan, P. J., Adel and Schmidt, JJ., concur; Beldock, J., dissents and votes to annul the determination, with the following memorandum: The testimony shows that petitioner was driving a loaded concrete mixing truck in an easterly direction on Route 109 in the vicinity of Lindenhurst, Suffolk County. Route 109, a four-lane highway running east and west with a mall ten to fifteen feet wide in the center, intersects Wellwood Avenue, a two-lane road running north and south. When petitioner was about 400 feet from the intersection, the light changed from red to green in his favor. Petitioner was then going about thirty miles an hour in the right or slow lane. He then noticed a school bus and a passenger car nine or ten lengths behind the bus, coming in the opposite direction, or westerly — on Route 109. The bus made a left turn into Wellwood Avenue. Petitioner testified that the passenger car also started to make a left turn into Wellwood Avenue, hesitated, “ almost came to a stop ” on the mall and “ shot out ” in front of him, resulting in a collision in which the driver of the passenger car was killed. A disinterested eyewitness, who was sitting in his car on the south side of Route 109, waiting for the light on Wellwood Avenue to change from red to green, testified, as did petitioner, with respect to the movements of the passenger car, and stated that the light was green in favor of petitioner. The undisputed evidence- indicates that the accident was precipitated by the driver of the passenger car. It does not appear that a criminal charge was made against petitioner. Under these circumstances, it is my opinion that there is no substantial evidence in this record to warrant a finding that petitioner violated subdivision 1 of section 56 of the Vehicle and Traffic Law. (Matter of Dietrichsen v. Macduff, 280 App. Div. 1016; Matter of Hessney v. Macduff, 284 App. Div. 70.) Murphy, J., concurs with Beldock, J.