Cadeau v. Gregorio

Full title: Letitia CADEAU, etc., Plaintiff–Appellant, Jayson Cadeau, etc., Plaintiff…

Court: Supreme Court, Appellate Division, First Department, New York.

Date published: Mar 12, 2013

104 A.D.3d 464 (N.Y. App. Div. 2013)

961 N.Y.S.2d 106

2013 N.Y. Slip Op. 1499

Opinion

2013-03-12

Letitia CADEAU, etc., Plaintiff–Appellant, Jayson Cadeau, etc., Plaintiff, v. Lindsay GREGORIO, Defendant–Respondent, Dennis Tyne, Defendant–Appellant.

Sackstein, Sackstein & Lee, LLP, Garden City (Leonard B. Chipkin of counsel), for Letitia Cadeau, appellant. Picciano & Scahill, P.C., Westbury (Andrea E. Ferrucci of counsel), for Dennis Tyne, appellant.

SWEENY

Sackstein, Sackstein & Lee, LLP, Garden City (Leonard B. Chipkin of counsel), for Letitia Cadeau, appellant. Picciano & Scahill, P.C., Westbury (Andrea E. Ferrucci of counsel), for Dennis Tyne, appellant.
Martin, Fallon & Mullé, Huntington (Stephen P. Burke of counsel), for respondent.

SWEENY, J.P., MOSKOWITZ, ABDUS–SALAAM, ROMÁN, FEINMAN, JJ.

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered February 23, 2012, which, to the extent appealed from as limited by the briefs, granted defendant Gregorio's motion for summary judgment dismissing the complaint as against her, unanimously affirmed, without costs.

Defendant Gregorio made a prima facie showing that she was not negligent by submitting evidence that, within “[f]raction of seconds” of her seeing it in the left-turn lane on the opposite side of the intersection, the vehicle operated by defendant Tyne made a left turn across the path of her oncoming vehicle and that she applied her brakes “[v]ery hard” but could not avoid the collision ( seeVehicle & Traffic Law § 1141; Moreback v. Mesquita, 17 A.D.3d 420, 793 N.Y.S.2d 148 [2d Dept. 2005];Welch v. Norman, 282 A.D.2d 448, 722 N.Y.S.2d 264 [2d Dept. 2001];Stiles v. County of Dutchess, 278 A.D.2d 304, 305, 717 N.Y.S.2d 325 [2d Dept. 2000] ). Tyne and the injured plaintiff, who was traveling in Tyne's vehicle, failed to raise an issue of fact in opposition, since their contention that Gregorio was traveling at an excessive speed or otherwise failed to avoid the accident was unsupported by any evidence ( see Batista v. Rivera, 5 A.D.3d 308, 774 N.Y.S.2d 136 [1st Dept. 2004];Murchison v. Incognoli, 5 A.D.3d 271, 773 N.Y.S.2d 299 [1st Dept. 2004] ).