Desio v. Cerebral Palsy Transp., Inc.

RUTH C. BALKIN

Reversed.
Edward Garfinkel (McGaw, Alventosa & Zajac, Jericho, N.Y. [Dawn C. DeSimone and Andrew Zajac], of counsel), for appellants. Subin Associates, LLP, New York, N.Y. (Brooke Lombardi and Gregory T. Cerchione of counsel), for respondent.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Richmond County (Fusco, J.), dated December 2, 2013, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is granted.

The plaintiff allegedly sustained personal injuries when the vehicle that she was operating collided with a vehicle owned by the defendant Cerebral Palsy Transport, Inc., and operated by the defendant Stephen W. Smith. The collision occurred on Richmond Avenue, near its intersection with Morani Street, in Staten Island. Richmond Avenue is a four-lane thoroughfare with two lanes moving in each direction. The accident occurred when the plaintiff attempted to make a left turn onto Richmond Avenue in front of a stopped bus while she exited a shopping plaza parking lot.

Vehicle and Traffic Law § 1143 provides that “[t]he driver of a vehicle about to enter or cross a roadway from any place other than another roadway shall yield the right of way to all vehicles approaching on the roadway to be entered or crossed.” “The driver with the right-of-way is entitled to anticipate that the other motorist will obey traffic laws which require him or her to yield” ( Williams v. Hayes, 103 A.D.3d 713, 714, 959 N.Y.S.2d 713; see Adobea v. Junel, 114 A.D.3d 818, 980 N.Y.S.2d 564; Figueroa v. Diaz, 107 A.D.3d 754, 755, 967 N.Y.S.2d 109; Rahaman v. Abodeledhman, 64 A.D.3d 552, 553, 883 N.Y.S.2d 259; see also Dimou v. Iatauro, 72 A.D.3d 732, 733–734, 899 N.Y.S.2d 308). A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law ( see Vainer v. DiSalvo, 79 A.D.3d 1023, 1024, 914 N.Y.S.2d 236; Jones v. Radeker, 32 A.D.3d 494, 496, 820 N.Y.S.2d 321).

There can be more than one proximate cause of an accident ( see Lopez v. Reyes–Flores, 52 A.D.3d 785, 786, 861 N.Y.S.2d 389), because each driver has a duty to exercise reasonable care under the circumstances to avoid an accident ( see Lu Yuan Yang v. Howsal Cab Corp., 106 A.D.3d 1055, 1056, 966 N.Y.S.2d 167; Cajas–Romero v. Ward, 106 A.D.3d 850, 851, 965 N.Y.S.2d 559; Shui–Kwan Lui v. Serrone, 103 A.D.3d 620, 959 N.Y.S.2d 270). As a result, even where there is evidence that another driver involved in the accident was negligent as a matter of law due to a violation of the Vehicle and Traffic Law, “the proponent of a summary judgment motion has the burden of establishing freedom from comparative negligence as a matter of law” ( Pollack v. Margolin, 84 A.D.3d 1341, 1342, 924 N.Y.S.2d 282; see Adobea v. Junel, 114 A.D.3d at 818, 980 N.Y.S.2d 564; Regans v. Baratta, 106 A.D.3d 893, 894, 965 N.Y.S.2d 171; Shui–Kwan Lui v. Serrone, 103 A.D.3d at 620, 959 N.Y.S.2d 270; Gardella v. Esposito Foods, Inc., 80 A.D.3d 660, 660, 914 N.Y.S.2d 678). Thus, a driver traveling with the right-of-way may nevertheless be found to have contributed to the happening of the accident if he or she did not use reasonable care to avoid the accident ( see Todd v. Godek, 71 A.D.3d 872, 895 N.Y.S.2d 861). However, “[a] driver with the right-of-way who has only seconds to react to a vehicle that has failed to yield is not comparatively negligent for failing to avoid the collision” ( Vazquez v. New York City Tr. Auth., 94 A.D.3d 870, 871, 941 N.Y.S.2d 887; see Bennett v. Granata, 118 A.D.3d 652, 987 N.Y.S.2d 424; Smalls v. Adams, 118 A.D.3d 693, 987 N.Y.S.2d 86; Kenda v. Dunn, 117 A.D.3d 803, 985 N.Y.S.2d 702).

Here, in support of their motion for summary judgment dismissing the complaint, the defendants established their prima facie entitlement to judgment as a matter of law by submitting, inter alia, the transcript of Smith's deposition. Smith testified at his deposition that he first observed the plaintiff's vehicle moving into traffic from in front of the stopped bus when his vehicle was halfway past the bus, which was less than a second prior to impact. Smith's testimony established that the plaintiff violated Vehicle and Traffic Law § 1143, making the plaintiff negligent as a matter of law ( see Adobea v. Junel, 114 A.D.3d at 820, 980 N.Y.S.2d 564; Mazza v. Manzella, 49 A.D.3d 609, 610, 854 N.Y.S.2d 424), and demonstrated that Smith was not comparatively negligent for failing to avoid the accident ( see Adobea v. Junel, 114 A.D.3d at 820, 980 N.Y.S.2d 564; Barbato v. Maloney, 94 A.D.3d 1028, 1029, 943 N.Y.S.2d 204; Vazquez v. New York City Tr. Auth., 94 A.D.3d at 871, 941 N.Y.S.2d 887).

In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff's testimony that seconds had passed from the time she first observed the defendants' vehicle to the impact was insufficient to raise a triable issue of fact ( see Strocchia v. City of New York, 70 A.D.3d 926, 927, 894 N.Y.S.2d 531).

The plaintiff's remaining contentions are without merit.

Accordingly, the Supreme Court should have granted the defendants' motion for summary judgment dismissing the complaint.