| Matthews v Smallridge |
| 2009 NY Slip Op 00919 [59 AD3d 1077] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| Cynthia J. Matthews, Appellant, v Kevin T. Smallridge et al.,Respondents. |
—[*1] Law Office of Laurie G. Ogden, Rochester (David F. Bowen of counsel), fordefendants-respondents.
Appeal from an order of the Supreme Court, Monroe County (Evelyn Frazee, J.), enteredDecember 11, 2007 in a personal injury action. The order granted the motion of defendants forsummary judgment dismissing the complaint.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs, the motion is denied and the complaint is reinstated.
Memorandum: Plaintiff commenced this action seeking damages for injuries she sustainedwhen the vehicle she was driving collided at an intersection with a vehicle owned by defendantKSPM Vending and operated by Kevin T. Smallridge (Smallridge vehicle). Plaintiff wastraveling eastbound as she attempted to make a left turn, whereupon her vehicle was struck bythe westbound Smallridge vehicle. The sole issue on appeal is whether Supreme Court properlygranted defendants' motion for summary judgment dismissing the complaint. We conclude thatthe court erred, inasmuch as defendants failed to meet their initial burden of establishing theirentitlement to judgment as a matter of law (see generally Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]). Indeed, defendants raised a triable issue of fact concerningthe negligence of Smallridge, and thus the vicarious liability of KSPM Vending, by submittingplaintiff's deposition testimony in support of their motion. Plaintiff testified therein thatSmallridge pulled out from behind a large westbound vehicle that was waiting to turn left andthat he then proceeded into the intersection where plaintiff was already located. Thus, defendantsraised an issue of fact whether Smallridge "failed to use reasonable care when proceeding intothe intersection" (Halbina v Brege,41 AD3d 1218, 1219 [2007]; seeFleming v Graham, 34 AD3d 525, 526 [2006], revd on other grounds 10 NY3d296 [2008]; Boston v Dunham, 274 AD2d 708, 710 [2000]; Teller v Anzano,263 AD2d 647, 647-648 [1999]). Present—Hurlbutt, J.P., Centra, Fahey and Peradotto, JJ.