GAWERA v. SCROGG

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed with costs.

Memorandum: Plaintiffs commenced this action to recover damages for injuries sustained by Cindy L. Gawera (plaintiff) when the vehicle she was driving collided with defendant's vehicle shortly after defendant exited a driveway and pulled onto the highway on which plaintiff was traveling. Supreme Court properly denied defendant's motion for summary judgment dismissing the complaint. Defendant failed to meet her initial burden on the motion ( see Karram v. Cirillo, 281 A.D.2d 946). Defendant's own submissions raise triable issues of fact whether defendant properly yielded to oncoming traffic when she exited the driveway ( see generally Ferrara v. Castro, 283 A.D.2d 392, 393) or "slow[ed] down without proper signaling so as to avoid a collision" ( Niemiec v. Jones, 237 A.D.2d 267, 268; see Karram, 281 A.D.2d 946; Silvestro v. Wartella, 224 A.D.2d 799). Because defendant failed to meet her initial burden on the motion, there is no need to consider the sufficiency of plaintiffs' submissions in opposition to the motion ( see Ayotte v. Gervasio, 81 N.Y.2d 1062, 1063).