| Sullivan v Mandato |
| 2009 NY Slip Op 00369 [58 AD3d 714] |
| January 20, 2009 |
| Appellate Division, Second Department |
| Daniel Sullivan et al., Appellants, v Christopher Mandatoet al., Respondents. |
—[*1] Litchfield Cavo, LLP, New York, N.Y. (Christopher A. McLaughlin of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from so muchof an order of the Supreme Court, Richmond County (Minardo, J.), dated October 4, 2007, asgranted that branch of the motion of the defendants Julio Montalvo and Terry Tom ServiceStation, Inc., which was for summary judgment dismissing the complaint insofar as assertedagainst them.
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendant Christopher Mandato was operating a vehicle owned by the defendants FrankMandato and Louisa Mandato in a southerly direction when he lost control of the vehicle,crossed over a double yellow line, and struck a vehicle owned by the defendant Terry TomService Station, Inc. (hereinafter Service Station), and operated by the defendant Julio Montalvoin the northbound lane. The infant plaintiff, a passenger of the Mandato vehicle, allegedlysustained personal injuries as a result of this collision, and the infant plaintiff and his parents,derivatively, commenced this action against the defendants. The defendants Service Station andMontalvo moved for summary judgment, contending that the defendant Christopher Mandato'salleged negligent conduct was the sole proximate cause of the accident. The Supreme Courtgranted the motion. We affirm.[*2]
A driver is not required to anticipate that an automobilegoing in the opposite direction will cross over into oncoming traffic (see Snemyr v Morales-Aparicio, 47AD3d 702 [2008]; Lee v Ratz,19 AD3d 552 [2005]). Indeed, "[c]rossing a double yellow line into the opposing laneof traffic, in violation of Vehicle and Traffic Law § 1126 (a), constitutes negligence as amatter of law, unless justified by an emergency situation not of the driver's own making" (Foster v Sanchez, 17 AD3d 312,313 [2005]; see Haughey v Noone, 262 AD2d 284 [1999]). Here, the defendants ServiceStation and Montalvo established their entitlement to judgment as a matter of law by submittingevidence demonstrating, prima facie, that the defendant Christopher Mandato violated Vehicleand Traffic Law § 1126 (a) by crossing over a double yellow line into an opposing lane oftraffic, thereby causing the collision (see Scott v Kass, 48 AD3d 785 [2008]; Snemyr v Morales-Aparicio, 47 AD3d702 [2008]; Eichenwald vChaudhry, 17 AD3d 403 [2005]). In opposition, the plaintiffs failed to submit evidencesufficient to raise a triable issue of fact. The plaintiffs' contention that the defendants Montalvoand Service Station failed to support their motion with evidence in admissible form is withoutmerit (see Felberbaum v Weinberger,40 AD3d 808 [2007]). Rivera, J.P., Santucci, Carni and Dickerson, JJ., concur.[See 17 Misc 3d 1110(A), 2007 NY Slip Op 51902(U).]