Opinion
2020–07267 Index No. 708581/19
08-17-2022
HUAI QIANG YE, plaintiff third-party defendant-respondent, v. Jose E. YEPES, defendant third-party plaintiff-appellant; Ning Ye, third-party defendant-respondent.
The Law Offices of Michael E. Garron, P.C., Plainview, NY (Seth D. Cohen of counsel), for defendant third-party plaintiff-appellant. Jennifer S. Adams, Yonkers, NY (Brian J. McCall of counsel), for plaintiff third-party defendant-respondent and third-party defendant-respondent.
The Law Offices of Michael E. Garron, P.C., Plainview, NY (Seth D. Cohen of counsel), for defendant third-party plaintiff-appellant.
Jennifer S. Adams, Yonkers, NY (Brian J. McCall of counsel), for plaintiff third-party defendant-respondent and third-party defendant-respondent.
BETSY BARROS, J.P., VALERIE BRATHWAITE NELSON, ROBERT J. MILLER, JOSEPH A. ZAYAS, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, and a third-party action for contribution, the defendant third-party plaintiff appeals from an order of the Supreme Court, Queens County (Richard G. Latin, J.), entered September 8, 2020. The order granted the motion of the plaintiff third-party defendant and the third-party defendant for summary judgment dismissing the third-party complaint.
ORDERED that the order is affirmed, with costs.
Huai Qiang Ye (hereinafter the plaintiff) allegedly sustained injuries when he was involved in an automobile accident in Queens. The plaintiff was a passenger in a vehicle owned by him and operated by the third-party defendant, Ning Ye, which was struck by a vehicle operated by the defendant third-party plaintiff, Jose E. Yepes. Yepes was making a left turn out of a driveway onto the roadway when his vehicle struck the plaintiff's vehicle. The plaintiff commenced this action against Yepes. Yepes commenced a third-party action against the plaintiff and Ning Ye (hereinafter together the Yes), seeking contribution. The plaintiff moved, inter alia, for summary judgment on the issue of liability, and the Yes moved for summary judgment dismissing the third-party complaint. In an order entered August 26, 2020, the Supreme Court granted the plaintiff's motion, among other things, for summary judgment on the issue of liability, finding that Yepes had violated the Vehicle and Traffic Law and was negligent as a matter of law. In an order entered September 8, 2020, the court granted the Yes’ motion for summary judgment dismissing the third-party complaint. Yepes appeals from the order entered September 8, 2020.
While Yepes does not dispute that he was negligent as a matter of law by failing to yield the right of way as he was entering the roadway (see Vehicle and Traffic Law § 1143 ), there can be more than one proximate cause of an accident, and the Yes had the burden of establishing freedom from comparative fault as a matter of law (see Ballentine v. Perrone, 179 A.D.3d 993, 994, 114 N.Y.S.3d 696 ; Inesta v. Florio, 159 A.D.3d 682, 682, 71 N.Y.S.3d 161 ; Colpan v. Allied Cent. Ambulette, Inc., 97 A.D.3d 776, 777, 949 N.Y.S.2d 124 ; Pollack v. Margolin, 84 A.D.3d 1341, 1342, 924 N.Y.S.2d 282 ).
"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" ( Estate of Cook v. Gomez, 138 A.D.3d 675, 677, 30 N.Y.S.3d 148 ; see Desio v. Cerebral Palsy Transport, Inc., 121 A.D.3d 1033, 1034, 994 N.Y.S.2d 681 ). "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 cannot be comparatively negligent for failing to avoid the collision" ( Yelder v. Walters, 64 A.D.3d 762, 764, 883 N.Y.S.2d 290 [internal citations omitted]; see Ricciardi v. Nelson, 142 A.D.3d 492, 493, 35 N.Y.S.3d 724 ; Levi v. Benyaminova, 128 A.D.3d 779, 780, 9 N.Y.S.3d 123 ; Bennett v. Granata, 118 A.D.3d 652, 653, 987 N.Y.S.2d 424 ).
Here, the Yes established their prima facie entitlement to judgment as a matter of law by demonstrating that Yepes negligently entered the roadway from a driveway without yielding the right-of-way, that the plaintiff's vehicle was not being operated in a negligent manner, and that there was insufficient time for the driver of the plaintiff's vehicle to avoid the collision (see Ricciardi v. Nelson, 142 A.D.3d at 493, 35 N.Y.S.3d 724 ; Levi v. Benyaminova, 128 A.D.3d at 780, 9 N.Y.S.3d 123 ; Bennett v. Granata, 118 A.D.3d at 653, 987 N.Y.S.2d 424 ). In opposition, Yepes failed to raise a triable issue of fact as to the Yes’ comparative negligence (see Mazza v. Manzella, 49 A.D.3d 609, 610, 854 N.Y.S.2d 424 ).
Contrary to Yepes's contention, the Yes’ motion for summary judgment dismissing the third-party complaint was not premature. Yepes failed to demonstrate that discovery might lead to relevant evidence or that facts essential to justify opposition to the motion were exclusively within the Yes’ control (see CPLR 3212[f] ; Hewitt v. Gordon–Fleetwood, 163 A.D.3d 536, 537, 79 N.Y.S.3d 641 ; Figueroa v. MTLR Corp., 157 A.D.3d 861, 863, 69 N.Y.S.3d 359 ).
BARROS, J.P., BRATHWAITE NELSON, MILLER and ZAYAS, JJ., concur.