| Dorr v Farnham |
| 2008 NY Slip Op 10285 [57 AD3d 1404] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| Wayne H. Dorr, as Executor of Cynthia A. Dorr, Deceased, Appellant, vKaren A. Farnham et al., Respondents. |
—[*1] Mackenzie Hughes LLP, Syracuse (Louis J. Tripoli of counsel), for defendants-respondents KarenA. Farnham and Clifford H. Farnham. Conboy, McKay, Bachman & Kendall, LLP, Watertown (Stephen W. Gebo of counsel), fordefendant-respondent County of Jefferson.
Appeal from an order of the Supreme Court, Jefferson County (Hugh A. Gilbert, J.), entered July31, 2007 in a negligence and wrongful death action. The order granted the motions of defendants forsummary judgment and dismissed the complaint.
It is hereby ordered that the order so appealed from is unanimously modified on the law by denyingthe motion of defendants Karen A. Farnham and Clifford H. Farnham and reinstating the complaintagainst those defendants and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries sustained by his wife(decedent) when the vehicle she was driving collided at an intersection with a vehicle operated byKaren A. Farnham and owned by Clifford H. Farnham (collectively, Farnham defendants). SupremeCourt erred in granting the motion of the Farnham defendants for summary judgment dismissing thecomplaint against them, and we therefore modify the order accordingly. In support of their motion,those defendants submitted the affidavit of Karen Farnham wherein she stated that the collisionoccurred when decedent, after stopping at a stop sign, proceeded into Karen Farnham's lane of travel,which was not controlled by any traffic devices. Karen Farnham further stated that she removed herfoot from the accelerator when she saw decedent approach the intersection, but she did not forciblyapply her brakes or engage in any other evasive maneuver until decedent was in her lane of travel.Although Karen Farnham "was entitled to anticipate that [decedent] would obey the traffic laws thatrequired her to yield the right-of-way to [Karen Farnham]" (Galvin v Zacholl, 302 AD2d 965,966 [2003], lv denied 100 NY2d 512 [2003]; see Vehicle and Traffic Law §1142 [a]; Guadagno v Norward, 43AD3d 1432, 1433 [2007]), the Farnham defendants failed to establish that Karen Farnham usedthe requisite " 'reasonable care when proceeding into the intersection' " (Strasburg v Campbell, 28 AD3d 1131,[*2]1132 [2006]; see Halbina v Brege, 41 AD3d 1218, 1219 [2007]). They thus failed tomeet their initial burden on the motion because they failed to establish that " 'the sole proximate cause ofthe accident was [decedent's] failure to yield the right of way' " to Karen Farnham (Guadagno,43 AD3d at 1433).
We further conclude, however, that the court properly granted the motion of defendant County ofJefferson (County) for summary judgment dismissing the complaint against it inasmuch as the Countyestablished its entitlement to judgment as a matter of law, and plaintiff failed to raise a triable issue offact (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Contrary toplaintiff's contention, any issue whether the stop sign or the stop bars provided adequate sight lines fordecedent is insufficient to defeat the motion because decedent had a duty to stop "at the point nearestthe intersecting roadway where [she] ha[d] a view of the approaching traffic on the intersectingroadway before entering the intersection" (Vehicle and Traffic Law § 1172 [a]). Furthermore,although the County has a nondelegable duty to maintain its highways "in a reasonably safe condition,which includes the duty to 'trim growth within the highway's right-of-way to assure visibility of stop signsand other traffic' " (Cain v Pappalardo, 225 AD2d 1005, 1006 [1996]; see generally Bantav County of Erie, 134 AD2d 839 [1987]), the submissions of the County in support of its motionestablish that it satisfied that duty (cf. Sanchez v Lippincott, 89 AD2d 372, 375 [1982]).Present—Scudder, P.J., Hurlbutt, Fahey, Peradotto and Pine, JJ.