Manhattan DA Cy Vance Fields Another Challenge to the Right of Way Law

@CBS @CNN @nypost Car flip 36th and Madison pic.twitter.com/SrEGhjLSwi

— Justin Kundrat (@JustinKundrat) February 29, 2016

A livery cab driver who killed a senior in a Manhattan crosswalk last winter is challenging the constitutionality of the Right of Way Law. District Attorney Cy Vance filed a response defending the statute.

At around 8:30 on the morning of February 29, Buddhi Gurung hit 77-year-old Carol Dauplaise with a Toyota sedan while turning left at the corner of Madison Avenue and E. 36th Street. Gurung was charged with violating the victim’s right of way under Section 19-190, an unclassified misdemeanor, and careless driving, which is a traffic infraction.

The Right of Way Law was adopted to give NYPD a tool to pursue cases against drivers who killed or injured people in crashes police did not witness — cases that historically resulted in no investigation and no penalty for motorists. According to court documents, NYPD investigators obtained video that showed Gurung strike Dauplaise as she crossed the street with other pedestrians “in a crosswalk with a walk signal.”

Gurung’s attorney wants the court to dismiss the Section 19-190 charge. Gurung claims the law unconstitutionally relies on a civil or “ordinary” negligence standard to prove failure to exercise due care, and that the law conflicts with state code.

Vance filed a thorough response, authored by Assistant DA Harrison Schweiloch, requesting that the judge deny the defendant’s motion. Among other arguments, Schweiloch wrote that the due care requirement in the Right of Way Law is identical to the standard established by VTL 1146, also known as Hayley and Diego’s Law, which was adopted in 2010. You can read the filing in its entirety here.

This is at least the third time a motorist has challenged the constitutionality of the law after killing a pedestrian in a crosswalk. Last January a New York County judge ruled against cab driver MD Hossain, the first person charged under Section 19-190, for fatally striking Silvia Gallo on the Upper East Side. But in June, Queens Criminal Court Judge Gia L. Morris threw out the Right of Way case against Isaac Sanson, the school bus driver who killed 85-year-old Jeanine Deutsch in Forest Hills. That decision is being appealed by Queens DA Richard Brown.

Gurung’s next court appearance is scheduled for January.