Opinion
929 CA 22-00371
02-10-2023
Laura GOMEZ, Plaintiff-Respondent, v. Richard P. BUCZYNSKI, Defendant-Appellant.
LAW OFFICE OF VICTOR M. WRIGHT, ORCHARD PARK (VICTOR M. WRIGHT OF COUNSEL), FOR DEFENDANT-APPELLANT. COLLINS & COLLINS ATTORNEYS, LLC, BUFFALO (ETHAN W. COLLINS OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
LAW OFFICE OF VICTOR M. WRIGHT, ORCHARD PARK (VICTOR M. WRIGHT OF COUNSEL), FOR DEFENDANT-APPELLANT.
COLLINS & COLLINS ATTORNEYS, LLC, BUFFALO (ETHAN W. COLLINS OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion insofar as it sought summary judgment dismissing the complaint is granted, the complaint is dismissed, and the second ordering paragraph is vacated.
Memorandum: Plaintiff commenced this action seeking damages for injuries she sustained when her vehicle was struck by a vehicle operated by defendant. The accident occurred at an intersection when plaintiff, who was traveling southerly along New York State Route 5 (Route 5), attempted to make a left turn in front of defendant's oncoming vehicle, which was traveling northerly along Route 5. Defendant moved for summary judgment dismissing the complaint or, in the alternative, for an order directing the bifurcation of the trial. Defendant appeals from an order that denied his motion, and we reverse.
We conclude that Supreme Court erred in denying defendant's motion insofar as it sought summary judgment dismissing the complaint. "It is well settled that [a] driver who has the right-of-way is entitled to anticipate that other drivers will obey the traffic laws requiring them to yield to the driver with the right-of-way ... Although a driver with the right-of-way has a duty to use reasonable care to avoid a collision ..., 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" ( Penda v. Duvall , 141 A.D.3d 1156, 1157, 36 N.Y.S.3d 333 [4th Dept. 2016] [internal quotation marks omitted]; see Heltz v. Barratt , 115 A.D.3d 1298, 1299, 983 N.Y.S.2d 160 [4th Dept. 2014], affd 24 N.Y.3d 1185, 3 N.Y.S.3d 757, 27 N.E.3d 471 [2014] ; Gilkerson v. Buck , 167 A.D.3d 1470, 1471, 90 N.Y.S.3d 750 [4th Dept. 2018] ).
Here, we conclude that defendant met his initial burden of establishing that he was not negligent because he had the right-of-way while traveling along Route 5, was operating his vehicle in a lawful and prudent manner, and was traveling at a lawful rate of speed, and that there was nothing he could have done to avoid the accident, which occurred when plaintiff suddenly turned left into defendant's lane of travel (see Godwin v. Mancuso , 170 A.D.3d 1672, 1672, 95 N.Y.S.3d 710 [4th Dept. 2019] ; Heltz , 115 A.D.3d at 1299, 983 N.Y.S.2d 160 ; Lescenski v. Williams , 90 A.D.3d 1705, 1705-1706, 935 N.Y.S.2d 828 [4th Dept. 2011], lv denied 18 N.Y.3d 811, 2012 WL 1432181 [2012] ; see also Vehicle and Traffic Law § 1141 ). We further conclude that plaintiff failed to raise an issue of fact in opposition to the motion (see generally Zuckerman v. City of New York , 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). Contrary to plaintiff's assertion, the deposition testimony did not raise an issue of fact whether defendant was negligently passing another vehicle on the right in violation of Vehicle and Traffic Law § 1123 at the time of the collision. Although there is conflicting deposition testimony concerning the precise lane in which defendant was traveling at the time of the collision, there is no dispute that defendant never changed lanes while driving along Route 5 at the time of the collision. Thus, plaintiff's assertion that defendant unsafely attempted to go around another vehicle at the time of the accident " ‘is based on speculation and is insufficient to defeat a motion for summary judgment’ " ( Wallace v. Kuhn , 23 A.D.3d 1042, 1043, 804 N.Y.S.2d 187 [4th Dept. 2005] ). Based on the foregoing, defendant's remaining contentions are academic.