| Lynch v Dobler Chevrolet, Inc. |
| 2008 NY Slip Op 01925 [49 AD3d 509] |
| March 4, 2008 |
| Appellate Division, Second Department |
| Brenda Lynch, Appellant, v Dobler Chevrolet, Inc., et al.,Respondents. |
—[*1] Fiedelman & McGaw, Jericho, N.Y. (Dawn C. DeSimone of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from (1) an orderof the Supreme Court, Queens County (Price, J.), dated October 3, 2006, which granted thedefendants' motion for summary judgment dismissing the complaint, and (2) an order of the samecourt (Cullen, J.), dated April 19, 2007, which denied her motion for leave to renew and rearguethe defendants' prior motion for summary judgment dismissing the complaint.
Ordered that the order dated October 3, 2006, is reversed, on the law, and the defendants'motion for summary judgment dismissing the complaint is denied; and it is further,
Ordered that the appeal from the order dated April 19, 2007, is dismissed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The defendants established their entitlement to judgment as a matter of law bydemonstrating, through the deposition testimony of the defendant James J. Schnitzer, that theplaintiff violated Vehicle and Traffic Law § 1141, when she made a left-hand turn directlyinto the path of the defendants' oncoming vehicle (see Maloney v Niewender, 27 AD3d 426 [2006]; Moreback v Mesquita, 17 AD3d420, 421 [2005]). Notably, Schnitzer testified that the highest speed his car attained justprior to the [*2]accident was 40 miles per hour, the speed limit onStewart Avenue, the roadway along which he had been driving. However, the evidence theplaintiff submitted in opposition to the motion, including, inter alia, the properly-notarizedaffidavit of nonparty eyewitness Jessica Lubeski, raised a triable issue of fact as to whether,immediately prior to the accident, Schnitzer was speeding and thus as to whether he was freefrom comparative negligence (seeGuzman v Bowen, 38 AD3d 837, 838 [2007]). Lubeski averred that immediately priorto the collision, she observed the defendants' motor vehicle pass her motor vehicle on StewartAvenue at a speed of, at least, 85 miles per hour, and shortly thereafter, heard a loud bang andrecognized Schnitzer's vehicle as one of the two cars involved in the collision. "A lay witness isordinarily permitted to testify as to the estimated speed of an automobile based upon theprevalence of automobiles in our society and the frequency with which most people view them atvarious speeds" (Shpritzman v Strong, 248 AD2d 524, 525 [1998]). A trier of fact coulddraw a reasonable inference from these facts, short of speculating, that Schnitzer's speed mayhave been a factor in the happening of the accident (see Alexander v Eldred, 63 NY2d460, 468 [1984]; Demshick vCommunity Hous. Mgt. Corp., 34 AD3d 518, 520 [2006]). Accordingly, the SupremeCourt should have denied the defendants' motion for summary judgment dismissing thecomplaint.
The appeal from the order dated April 19, 2007, denying the plaintiff's motion for leave torenew and reargue the defendants' prior motion for summary judgment dismissing the complaint,must be dismissed as it has been rendered academic in light of our determination on the appealfrom the order dated October 3, 2006. In any event, the appeal from so much of the order datedApril 19, 2007, as denied that branch of the plaintiff's motion which was for leave to rearguemust also be dismissed as no appeal lies from an order denying reargument. Rivera, J.P., Miller,Dillon and Belen, JJ., concur.