| Guadagno v Norward |
| 2007 NY Slip Op 07248 [43 AD3d 1432] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| Christopher M. Guadagno, Respondent, v Keith E. Norward et al.,Appellants, et al., Defendants. |
—[*1] Paul William Beltz, P.C., Buffalo (Debra A. Norton of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (Rose H. Sconiers, J.), enteredOctober 12, 2006 in a personal injury action. The order, insofar as appealed from, grantedplaintiff's cross motion for partial summary judgment on liability.
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslyaffirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustainedwhen a vehicle driven by Keith E. Norward (defendant) collided with a vehicle driven byplaintiff. Supreme Court properly granted plaintiff's cross motion for partial summary judgmenton liability. Plaintiff met his initial burden by establishing as a matter of law "that the soleproximate cause of the accident was defendant's failure to yield the right of way" to plaintiff(Kelsey v Degan, 266 AD2d 843 [1999]; see Galvin v Zacholl, 302 AD2d 965,967 [2003], lv denied 100 NY2d 512 [2003]), and defendants failed to raise a triableissue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).According to the deposition testimony of plaintiff, he observed defendant's vehicle travelingtoward his vehicle, in the opposite lane, when the two vehicles were approximately 1,000 feetapart. Plaintiff and defendant continued to drive their vehicles in their respective lanes untildefendant suddenly drove into the path of plaintiff's oncoming vehicle in an attempt to make aleft-hand turn into a driveway. Defendant testified at his deposition that there were no vehicles inhis lane in front of him and that he did not see plaintiff's vehicle until he started to make his turn.Plaintiff thus established as a matter of law that defendant "was negligent in failing to see thatwhich, under the circumstances, he should have seen, and in crossing in front of [plaintiff's]vehicle when it was hazardous to do so" (Stiles v County of Dutchess, 278 AD2d 304,305 [2000]; see Rivera v Frontier Tel. ofRochester, Inc., 13 AD3d 1065 [2004]; Hillman v Eick, 8 AD3d 989, 991 [2004]), and plaintiff establishedas a matter of law that he "was free from fault in the occurrence of the accident"(Hillman, 8 AD3d at 991). Present—Gorski, J.P., Smith, Centra, Fahey and Green,JJ.