| Groboski v Godfroy |
| 2010 NY Slip Op 04900 [74 AD3d 1524] |
| June 10, 2010 |
| Appellate Division, Third Department |
| Katrina M. Groboski, Appellant, v Louis Godfroy IV et al.,Respondents. |
—[*1] McCabe & Mack, L.L.P., Poughkeepsie (Kimberly Hunt Lee of counsel), forrespondents.
Kavanagh, J. Appeal from an order of the Supreme Court (Hummel, J.), entered July 31,2009 in Columbia County, which granted defendants' motion for summary judgment dismissingthe complaint.
At approximately 10:00 p.m. on August 27, 2007, plaintiff, while operating a motor vehicle,exited a gas station parking lot and was in the process of crossing a four-lane highway to make aleft turn onto the eastbound lane of Route 295 in the Town of Chatham, Columbia County whenher vehicle was struck broadside by an automobile being driven by defendant Louis Godfroy IV(hereinafter Godfroy). Plaintiff subsequently commenced this action against Godfroy and thevehicle's owner, defendant Louis Godfroy III, to recover damages for the injuries she sustainedin this accident.[FN1]Following discovery, defendants moved for summary judgment dismissing the complaint.Supreme Court granted defendants' motion, which, in turn, prompted this appeal.[*2]
We affirm. In support of their motion for summaryjudgment, defendants presented Godfroy's own testimony, as well as that of a professionalengineer, to establish that prior to the accident, Godfroy had the right-of-way and was travelingwithin the 55 mile per hour speed limit when plaintiff's vehicle suddenly accelerated onto thehighway in front of him, leaving Godfroy an inadequate amount of time to take evasive actionand avoid this collision. "This evidence, together with [plaintiff's] undisputed failure to yield theright-of-way, was sufficient to meet defendant[s'] initial burden to show that [plaintiff's]negligence was the sole proximate cause of the accident" (Garnsey v Bujanowski, 13 AD3d 857, 857 [2004] [citationsomitted]; see Khan v Nelson, 68AD3d 1062, 1062-1063 [2009]; Horton v Warden, 32 AD3d 570, 572 [2006]; Rowe vHarrison, 303 AD2d 863, 863 [2003]).
In response, plaintiff submitted her own affidavit as well as deposition testimony that she hasgiven in this action to establish that, at the time of the accident, Godfroy was operating his motorvehicle at an excessive rate of speed and, as a result, could not avoid colliding with her vehicleas she entered onto the highway to make a left turn into the eastbound lane of Route 295 (seeColaruotolo v Crowley, 290 AD2d 863, 864 [2002]).[FN2]Plaintiff specifically claims that she first saw Godfroy's vehicle approximately five secondsbefore the accident and, at the time, the vehicle was traveling in her direction approximately 500feet from the entrance to the gas station parking lot. She acknowledged not knowing the speed ofGodfroy's vehicle at the time of the accident, but argues that it must have been traveling well inexcess of the posted speed limit for it to have covered 500 feet in the time it took her to exit thegas station and move out onto the highway. However, defendants' expert offered an opinion thattook into account plaintiff's testimony regarding what she did from when she first saw Godfroy'svehicle until the moment of impact, and concluded that Godfroy would have been driving withinthe speed limit when plaintiff actually exited the parking lot and drove onto Route 295. Plaintiffhas not presented any evidence that calls into question this analysis and, as such, even if herversion of what transpired in the time immediately prior to the accident is fully accepted, she hasfailed to create a question of fact that would in any way support a finding that Godfroy waslegally responsible for the cause of this accident. As a result, defendants' motion for summaryjudgment was properly granted.
Finally, we reject plaintiff's claim that the engineer's affidavit submitted by defendantsshould have been rejected as lacking a proper scientific basis. Not only was the expert wellqualified to give an opinion, but his findings, all rendered within a reasonable degree ofengineering certainty, were based upon facts fully supported by the record (compare Rockefeller v Albany WeldingSupply Co., 3 AD3d 753, 756 [2004]).
Cardona, P.J., Mercure, Peters and Garry, JJ., concur. Ordered that the order is affirmed,with costs.
Footnote 1: Plaintiff also named the Villageof Chatham as a defendant, but later agreed to discontinue the action against the Village when itwas determined that Godfroy, a Village police officer, was off-duty when the accident occurred.
Footnote 2: Plaintiff also submitted anaffidavit by her counsel that was appropriately rejected by Supreme Court because counsel hadno firsthand knowledge of the circumstances surrounding the accident and the documentotherwise lacked any evidentiary value (see Ahlers v Wildermuth, 70 AD3d 1154, 1155 [2010]; 2 N. St. Corp. v Getty SaugertiesCorp., 68 AD3d 1392, 1395 [2009], lv denied 14 NY3d 706 [2010]).