| Whitcombe v Phillips |
| 2009 NY Slip Op 03340 [61 AD3d 1431] |
| April 24, 2009 |
| Appellate Division, Fourth Department |
| Kevin E. Whitcombe, Appellant, v Rebecca Phillips et al.,Respondents. |
—[*1] Law Offices of Lawrence M. Rubin, Buffalo (Destin C. Santacrose of counsel), fordefendants-respondents.
Appeal from an order of the Supreme Court, Monroe County (Matthew A. Rosenbaum, J.),entered September 8, 2008 in a personal injury action. The order denied the motion of plaintifffor partial summary judgment on the issue of liability.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs and the motion is granted.
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustainedwhen a vehicle operated by Rebecca Phillips (defendant) collided with the motorcycle operatedby plaintiff. We agree with plaintiff that Supreme Court erred in denying his motion for partialsummary judgment on the issue of liability. In support of his motion, plaintiff established that hewas operating his motorcycle in the curb side lane of a four-lane roadway, that he was travelingat or below the speed limit, and that "all of a sudden" defendant's vehicle exited a parking lotinto his lane of traffic and struck his motorcycle. Defendant testified at her deposition that shesaw plaintiff for the first time when she had already begun to pull out into the roadway and thatshe drove into the roadway despite the fact that her vision of the roadway was obscured by alegally parked vehicle. Plaintiff thus established that defendant was negligent as a matter of lawin failing to see that which she should have seen (see Miller v Richardson, 48 AD3d 1298, 1300 [2008], lvdenied 11 NY3d 710 [2008]; Stiles v County of Dutchess, 278 AD2d 304 [2000];see also Kornacki v Kornacki [appeal No. 2], 280 AD2d 981, 981-982 [2001]), and thatthe sole proximate cause of the accident was defendant's failure to yield the right of way toplaintiff (see Vehicle and Traffic Law § 1143; Miller, 48 AD3d at 1300;Wallace v Kuhn, 23 AD3d1042, 1043 [2005]). Present—Hurlbutt, J.P., Martoche, Centra, Pine and Gorski, JJ.