Opinion
12249 Index No. 303148/16 Case No. 2019-04958
10-29-2020
Stephanie HIDALGO, Plaintiff–Respondent, v. Esgare VASQUEZ, et al., Defendants, Luis Fernandez, Defendant–Appellant.
Cheven, Keely & Hatzis, New York (Thomas Torto of counsel), for appellant. Steinberg & Gruber, P.C., Garden City (Hermann P. Gruber of counsel), for respondent.
Cheven, Keely & Hatzis, New York (Thomas Torto of counsel), for appellant.
Steinberg & Gruber, P.C., Garden City (Hermann P. Gruber of counsel), for respondent.
Manzanet–Daniels, J.P., Mazzarelli, Moulton, Kennedy, JJ.
Order, Supreme Court, Bronx County (John R. Higgitt, J.), entered on or about October 15, 2019, which denied the motion of defendant Luis Fernandez for summary judgment dismissing the complaint and all cross claims as against him, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
Defendant made a prima facie showing of entitlement to summary judgment. He testified at his deposition that he was driving slowly in his lane on a two-lane street when codefendants' car, traveling in the opposite direction, sped across the double yellow lines and hit his car, injuring plaintiff, a passenger in defendant's car. Defendant testified that he honked his horn and tried to swerve out of the way, but he could not avoid the accident. The failure of a driver to avert the consequence of a speeding oncoming vehicle crossing over into his lane is not negligence (see Benedetto v. City of New York, 166 A.D.2d 209, 210, 564 N.Y.S.2d 95 [1st Dept. 1990] ; see also Mack v. Seabrook, 161 A.D.3d 704, 78 N.Y.S.3d 65 [1st Dept. 2018], lv denied 32 N.Y.3d 915, 2019 WL 691008 [2019] ; Vehicle and Traffic Law §§ 1120[a], 1126[a] ).
In opposition, plaintiff failed to raise a triable issue of fact. Her affidavit stating that defendant negligently failed to evade the oncoming car was speculative (see e.g. Harrigan v. Sow, 165 A.D.3d 463, 85 N.Y.S.3d 424 [1st Dept. 2018] ; Jenkins v. Alexander, 9 A.D.3d 286, 288, 780 N.Y.S.2d 133 [1st Dept. 2004] ), and it contradicted her earlier deposition testimony that she did not observe anything before the accident took place because she was looking down at her phone (see Luna v. CEC Entertainment Inc., 159 A.D.3d 445, 446, 71 N.Y.S.3d 80 [1st Dept. 2018] ; Peralta–Santos v. 350 W. 49th St. Corp., 139 A.D.3d 536, 537, 30 N.Y.S.3d 553 [1st Dept. 2016] ). No other evidence was proffered to support that defendant failed to take reasonable steps to avoid the collision.