| Snemyr v Morales-Aparicio |
| 2008 NY Slip Op 00254 [47 AD3d 702] |
| January 15, 2008 |
| Appellate Division, Second Department |
| Karen Snemyr et al., Appellants-Respondents, v W.A.Morales-Aparicio et al., Respondents, and Ellen K. Valenti,Appellant. |
—[*1] Cartiglia, Connolly & Russo, Mineola, N.Y. (Lynne M. Nolan and Jeanne Ramasso ofcounsel), for appellant. Muscarella & DiRaimo, LLP, Garden City, N.Y. (Gary F. Borrelli of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Nassau County (Feinman, J.), datedOctober 3, 2006, as denied their motion for summary judgment on the issue of the liability of thedefendants W.A. Morales-Aparicio and Galileo I. Aparicio, and the defendant Ellen K. Valentiseparately appeals, as limited by her brief, from so much of the same order as denied her crossmotion for summary judgment dismissing the complaint and all cross claims insofar as assertedagainst her.
Ordered that the order is reversed, on the law, with one bill of costs payable to the plaintiffsand the defendant Ellen K. Valenti by the defendants W.A. Morales-Aparicio and Galileo I.Aparicio, the plaintiffs' motion for summary judgment on the issue of the liability of thedefendants W.A. Morales-Aparicio and Galileo I. Aparicio is granted, and the cross motion forsummary judgment dismissing the complaint and all cross claims insofar as asserted against thedefendant Ellen K. Valenti is granted.
The infant plaintiff was injured when the vehicle in which she was riding, owned by [*2]the defendant Galileo I. Aparicio and operated by the defendantW.A. Morales-Aparicio, was involved in a head-on collision with a vehicle operated by thedefendant Ellen K. Valenti. The plaintiffs commenced this personal injury action, and thereaftermoved for summary judgment on the issue of the liability of the defendants W.A.Morales-Aparicio and Galileo I. Aparicio (hereinafter the Aparicio defendants). Valenticross-moved for summary judgment dismissing the complaint and all cross claims insofar asasserted against her. The Supreme Court denied the motion and the cross motion. We reverse.
The plaintiffs established their prima facie entitlement to judgment as a matter of law bysubmitting evidence showing that Morales-Aparicio violated Vehicle and Traffic Law §1126 (a) by crossing over a double yellow line into an opposing lane of traffic, thereby causingthe collision (see Marsicano v DealerStor. Corp., 8 AD3d 451, 452 [2004]; Browne v Castillo, 288 AD2d 415[2001]). "Crossing a double yellow line into the opposing lane of traffic, in violation of Vehicleand Traffic Law § 1126 (a), constitutes negligence as a matter of law, unless justified by anemergency situation not of the driver's own making" (Foster v Sanchez, 17 AD3d 312, 313 [2005]; see Marsicano vDealer Stor. Corp., 8 AD3d at 452; Gadon v Oliva, 294 AD2d 397, 397-398 [2002]).Moreover, Valenti was "not required to anticipate that a vehicle traveling in the oppositedirection [would] cross over into oncoming traffic" (Eichenwald v Chaudhry, 17 AD3d 403, 404 [2005]; see Velez vDiaz, 227 AD2d 615, 615-616 [1996]). Thus, the evidence that Morales-Aparicio crossedover the double yellow line was also sufficient to establish Valenti's prima facie entitlement tojudgment as a matter of law.
In opposition, the Aparicio defendants failed to demonstrate the existence of a triable issue offact as to whether Morales-Aparicio crossed the double yellow line or was confronted with anemergency situation not of his own making at the time of the accident (cf. Espinal v Sureau,262 AD2d 523, 524 [1999]). The Aparicio defendants' contention that questions of fact existas to Valenti's alleged failure to take evasive action is without merit (see Eichenwald vChaudhry, 17 AD3d at 404; Gadon v Oliva, 294 AD2d at 398).
Accordingly, the Supreme Court should have granted the plaintiffs' motion for summaryjudgment on the issue of the Aparicio defendants' liability, as well as Valenti's cross motion forsummary judgment dismissing the complaint and all cross claims insofar as asserted against her.Prudenti, P.J., Crane, Fisher and McCarthy, JJ., concur.