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stating that "Defendant's claimed inability to recall the circumstances of the accident 'is not affirmative proof that the event did not happen . . . [and is] thus insufficient to create an issue of fact'" (quoting Bavisotto v. Doldan, 175 A.D.3d 891, 893 (4th Dep't 2019))
Summary of this case from A.H. v. Precision Indus. Maint. Inc.Opinion
439 CA 19-02079
10-02-2020
Andrew KOWALYK and Holly Kowalyk, Plaintiffs-Appellants, v. WAL-MART STORES, INC., et al., Defendants, John J. Jones, III, Adesa Buffalo, Adesa New York, LLC, and KAR Auction Services, Inc., Defendants-Respondents.
CAMBELL & ASSOCIATES, EDEN (R. COLIN CAMPBELL OF COUNSEL), FOR PLAINTIFFS-APPELLANTS. HURWITZ & FINE, P.C., BUFFALO (JODY E. BRIANDI OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
CAMBELL & ASSOCIATES, EDEN (R. COLIN CAMPBELL OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
HURWITZ & FINE, P.C., BUFFALO (JODY E. BRIANDI OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
PRESENT: CENTRA, J.P., NEMOYER, TROUTMAN, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs and the motion is granted in part with respect to the issue of negligence.
Memorandum: Plaintiffs commenced this action to recover damages for injuries allegedly sustained by Andrew Kowalyk (plaintiff) when his vehicle collided with a vehicle operated by defendant-respondent John J. Jones, III (defendant) and owned by one or more of the other defendants-respondents. Plaintiff thereafter moved for, inter alia, partial summary judgment against all defendants-respondents (collectively, defendants) on the issue of negligence. Supreme Court denied the motion, and we now reverse the order insofar as appealed from.
"It is well settled that a driver who has the right-of-way is entitled to anticipate that the drivers of other vehicles will obey the traffic laws that require them to yield. Because [defendant] was entering the roadway from a parking lot, [ ]he was required to yield the right-of-way to [plaintiff's] vehicle" ( Rose v. Leberth , 128 A.D.3d 1492, 1493, 8 N.Y.S.3d 819 [4th Dept. 2015] [internal quotation marks, brackets, and citation omitted]; see Vehicle and Traffic Law § 1143 ). Here, plaintiffs met their initial burden of proof with respect to defendant's negligence by submitting, inter alia, plaintiff's deposition testimony recounting the circumstances of the accident and the corroborating police report, which established as a matter of law that defendant violated Vehicle and Traffic Law § 1143, breached his duty to operate his vehicle with due care, and thereby caused the accident (see Garza v. Taravella , 74 A.D.3d 1802, 1804, 905 N.Y.S.2d 392 [4th Dept. 2010] ; Whitcombe v. Phillips , 61 A.D.3d 1431, 1431, 877 N.Y.S.2d 717 [4th Dept. 2009] ; see also Kerolle v. Nicholson , 172 A.D.3d 1187, 1188, 101 N.Y.S.3d 387 [2d Dept. 2019] ).
In opposition, defendants failed to raise a triable issue of fact (see Kerolle , 172 A.D.3d at 1188, 101 N.Y.S.3d 387 ; Garza , 74 A.D.3d at 1804, 905 N.Y.S.2d 392 ). Defendant's claimed inability to recall the circumstances of the accident "is not affirmative proof that the event did not happen[ and is] ... thus insufficient to create an issue of fact" ( Bavisotto v. Doldan , 175 A.D.3d 891, 893, 107 N.Y.S.3d 533 [4th Dept. 2019] ). Moreover, while defendant made inconsistent statements about his actions before pulling into the street from the parking lot, those statements offered no basis for a rational factfinder to excuse his violation of Vehicle and Traffic Law § 1143 or negate his responsibility for the accident (see generally Amerman v. Reeves , 148 A.D.3d 1632, 1633, 50 N.Y.S.3d 717 [4th Dept. 2017] ). The remaining factual disputes upon which defendants rely are not material to the issue of negligence (see generally Rose , 128 A.D.3d at 1493, 8 N.Y.S.3d 819 ).