| DeLuca v Cerda |
| 2009 NY Slip Op 01769 [60 AD3d 721] |
| March 10, 2009 |
| Appellate Division, Second Department |
| Susan DeLuca, Appellant, v Joey F. Cerda et al.,Defendants, and Emil F. Onolfi, Respondent. |
—[*1] DeSena & Sweeney, LLP, Hauppauge, N.Y. (Shawn P. O'Shaughnessy of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by herbrief, from so much of an order of the Supreme Court, Nassau County (Murphy, J.), datedDecember 31, 2007, as granted the motion of the defendant Emil F. Onolfi for summaryjudgment dismissing the complaint insofar as asserted against him.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff was a passenger on a motorcycle driven by the defendant Emil F. Onolfi onLong Beach Road in Nassau County. The defendant Joey F. Cerda was operating a tow truckowned by the defendant No Limit Towing & Recovery, Inc., when he exited a parking lot,entered Long Beach Road, and collided with the motorcycle, causing the plaintiff to sustainserious injuries.
At his deposition, Cerda admitted that he only came to a "rolling stop," and did not see themotorcycle before entering Long Beach Road. An independent witness confirmed that the towtruck driver did not stop as he exited the parking lot. Onolfi testified at his deposition that henoticed the tow truck while it was in the parking lot and next saw it seconds before it collidedwith his motorcycle.
Onolfi made a prima facie showing of entitlement to judgment as a matter of law (see[*2]Winegrad v New York Univ. Med. Ctr., 64 NY2d 851[1985]; Rieman v Smith, 302 AD2d 510 [2003]; Lupowitz v Fogarty, 295 AD2d576 [2002]; McKeaveney v Reiffert, 268 AD2d 411 [2000]). As the driver who had theright-of-way, he was entitled to anticipate that Cerda would obey the traffic laws by coming to acomplete stop before entering the roadway (see Rak v Kossakowski, 24 AD3d 1191 [2005]). In opposition tothe motion, the plaintiff failed to raise an issue of fact as to whether Onolfi, who had onlyseconds in which to react to the situation, was negligent in failing to avoid the collision (see Batts v Page, 51 AD3d 833[2008]; Lupowitz v Fogarty, 295 AD2d 576 [2002]; Le Claire v Pratt, 270 AD2d612 [2000]; McKeaveney v Reiffert, 268 AD2d 411 [2000]). Although the plaintiffsuffers from amnesia as a result of the accident, and thus is not held to as high a degree of proof,she is not relieved of the obligation to provide some proof from which negligence can reasonablybe inferred, which she failed to do (see Noseworthy v City of New York, 298 NY 76[1948]; Blanco v Oliveri, 304 AD2d 599 [2003]; Albinowski v Hoffman, 56 AD3d 401 [2008]; Jose vRichards, 307 AD2d 279, 280 [2003]).
Accordingly, the Supreme Court properly granted Onolfi's motion for summary judgmentdismissing the complaint insofar as asserted against him. Skelos, J.P., Santucci, Balkin and Eng,JJ., concur.