Opinion
08-03-2016
Zofia RICCIARDI, respondent, v. Kenneth NELSON, appellant.
Martyn, Toher, Martyn & Rossi, Mineola, NY (Megan C. Sampson of counsel), for appellant. Bergman, Bergman, Goldberg, Fields & Lamonsoff, LLP, Forest Hills, NY (Seth Fields and Allen Goldberg of counsel), for respondent.
Martyn, Toher, Martyn & Rossi, Mineola, NY (Megan C. Sampson of counsel), for appellant.
Bergman, Bergman, Goldberg, Fields & Lamonsoff, LLP, Forest Hills, NY (Seth Fields and Allen Goldberg of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., THOMAS A. DICKERSON, COLLEEN D. DUFFY, and HECTOR D. LaSALLE, JJ.
Opinion In an action, inter alia, to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Reilly, J.), entered July 16, 2015, which granted the plaintiff's motion for summary judgment on the issue of liability.
ORDERED that the order is affirmed, with costs.
On November 13, 2012, the plaintiff was driving east on Glen Head Road in Glen Head when her vehicle came into contact with a vehicle operated by the defendant, which entered the roadway from a parking lot and attempted to make a left turn by crossing over the eastbound travel lane in order to head west on Glen Head Road. The plaintiff commenced this action against the defendant, inter alia, to recover damages for personal injuries she sustained as a result of the accident. Subsequently, the plaintiff moved for summary judgment on the issue of liability. The Supreme Court granted the motion. We affirm.
A plaintiff in a personal injury action who moves for summary judgment on the issue of liability has the burden of establishing, prima facie, both that the defendant was negligent and that he or she was free from comparative fault (see McLaughlin v. Lunn, 137 A.D.3d 757, 26 N.Y.S.3d 338 ; France Herly Bien–Aime v. Clare, 124 A.D.3d 814, 814, 2 N.Y.S.3d 557 ). Where the movant has established his or her entitlement to judgment as a matter of law, the opposing party may defeat the motion for summary judgment by submitting sufficient evidence to raise a triable issue of fact as to the moving party's comparative fault (see Brown v. Mackiewicz, 120 A.D.3d 1172, 992 N.Y.S.2d 314 ; Ramos v. Bartis, 112 A.D.3d 804, 977 N.Y.S.2d 315 ; Lu Yuan Yang v. Howsal Cab Corp., 106 A.D.3d 1055, 966 N.Y.S.2d 167 ).
“The 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” (Vehicle and Traffic Law § 1143 ; see Marcel v. Sanders, 123 A.D.3d 1097, 1 N.Y.S.3d 230 ; Adobea v. Junel, 114 A.D.3d 818, 819, 980 N.Y.S.2d 564 ). A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law (see Estate of Cook v. Gomez, 138 A.D.3d 675, 30 N.Y.S.3d 148 ; Marcel v. Sanders, 123 A.D.3d at 1098, 1 N.Y.S.3d 230 ; Adobea v. Junel, 114 A.D.3d at 819, 980 N.Y.S.2d 564 ; Botero v. Erraez, 289 A.D.2d 274, 734 N.Y.S.2d 565 ). “The operator of a vehicle with the right-of-way is entitled to assume that the opposing driver will obey the traffic laws requiring him or her to yield” (Bennett v. Granata, 118 A.D.3d 652, 652, 987 N.Y.S.2d 424 ; see Marcel v. Sanders, 123 A.D.3d at 1098, 1 N.Y.S.3d 230 ; Bonilla v. Calabria, 80 A.D.3d 720, 915 N.Y.S.2d 615 ). “Although a driver with a right-of-way also has a duty to use reasonable care to avoid a collision, it has been recognized that a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision” (Yelder v. Walters, 64 A.D.3d 762, 764, 883 N.Y.S.2d 290 [citations omitted]; see Marcel v. Sanders, 123 A.D.3d at 1098, 1 N.Y.S.3d 230 ; Desio v. Cerebral Palsy Transp., Inc., 121 A.D.3d 1033, 1035, 994 N.Y.S.2d 681 ; Adobea v. Junel, 114 A.D.3d at 820, 980 N.Y.S.2d 564 ).
Here, the plaintiff established, prima facie, her entitlement to judgment as a matter of law by demonstrating that the defendant negligently entered the roadway from a parking lot without yielding the right-of-way, and that such negligence was the sole proximate cause of the accident (see Vehicle and Traffic Law § 1143 ; Marcel v. Sanders, 123 A.D.3d at 1098, 1 N.Y.S.3d 230 ; Desio v. Cerebral Palsy Transp., Inc., 121 A.D.3d at 1033, 994 N.Y.S.2d 681 ; Abatzidis v. Fenton, 116 A.D.3d 802, 983 N.Y.S.2d 423 ). In opposition, the defendant failed to raise a triable issue of fact as to whether the plaintiff was comparatively at fault in the happening of the accident. Accordingly, the Supreme Court properly granted the plaintiff's motion for summary judgment on the issue of liability.