| Griffin v Pennoyer |
| 2008 NY Slip Op 02193 [49 AD3d 341] |
| March 13, 2008 |
| Appellate Division, First Department |
| Tiffany Griffin, Respondent, v Christina Pennoyer,Appellant. |
—[*1]
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered January 5, 2007,which granted plaintiff's motion for partial summary judgment as to liability, unanimouslyaffirmed, without costs.
Plaintiff's prediscovery motion for partial summary judgment was not, under thecircumstances, premature since defendant failed to demonstrate that facts essential to justifyopposition to the motion may exist but could not be stated (see CPLR 3212 [f]).
In support of her motion, plaintiff submitted evidence in admissible form, including heraffidavit and a police report containing admissions by defendant, demonstrating that defendantmade an abrupt left-hand turn into the path of plaintiff's vehicle, which was passing through anintersection with a green light in its favor and the right-of-way, and that plaintiff was free fromany negligence. This evidence, which demonstrated that defendant violated Vehicle and TrafficLaw § 1141, was sufficient to establish plaintiff's entitlement to judgment as a matter oflaw on the issue of which driver was responsible for the accident (see Berner v Koegel, 31 AD3d 591[2006]).
In opposition, defendant failed to raise a triable issue of fact. Defendant's averment that shehad a green light in her favor when she attempted to make the left-hand turn did not undercutplaintiff's assertion that she had a green light. Thus, regardless of the color of the light indefendant's direction, plaintiff had the right-of-way (see Vehicle and Traffic Law §1141). Moreover, defendant's conclusory assertion that "[b]efore making the turn I checked tomake sure that the way was clear" is insufficient to raise a triable issue of fact (seeBerner, supra [defendant's testimony that she never saw plaintiff's vehicle beforecollision in intersection occurred was insufficient to raise triable issue of fact regardingdefendant's negligence or plaintiff's comparative fault since a driver has a duty to see that which,through the proper use of senses, should have been seen]).
There is no basis, on this record, for finding that bifurcation of the fault and serious injury(Insurance Law § 5102 [d]) issues was improper or in any way prejudicial to [*2]defendant (see Shinn v Catanzaro, 1 AD3d 195, 199 [2003]; Reid vBrown, 308 AD2d 331 [2003]). Concur—Lippman, P.J., Andrias, Williams andMcGuire, JJ.