| Cox v Weil |
| 2009 NY Slip Op 07222 [66 AD3d 634] |
| October 6, 2009 |
| Appellate Division, Second Department |
| Kathleen Cox et al., Respondents, v Thomas E. Weil, Jr.,et al., Appellants, and Peter G. Meyer et al., Respondents. |
—[*1] Joseph A. Miller III, West Sayville, N.Y., for plaintiffs-respondents. Zaklukiewicz, Puzo & Morrissey, LLP, Islip Terrace, N.Y. (Aileen R. Kavanagh of counsel),for defendant-respondent Peter G. Meyer. Carman, Callahan & Ingham, LLP, Farmingdale, N.Y. (Michael F. Ingham of counsel), fordefendant-respondent Enterprise Leasing Company, doing business as EnterpriseRent-A-Car.
In an action to recover damages for personal injuries, etc., the defendants Thomas E. Weil,Jr., Thomas E. Weil, Sr., and Lee Anne Weil appeal, as limited by their brief, from so much ofan order of the Supreme Court, Suffolk County (Baisley, Jr., J.), dated May 12, 2008, as deniedtheir cross motion for summary judgment dismissing the complaint and all cross claims insofaras asserted against them.
Ordered that the order is affirmed insofar as appealed from, with costs.
On October 6, 2004, at approximately 7:00 a.m., an accident occurred involving threevehicles at an intersection which was governed by traffic light signals.
A driver who has the right-of-way is entitled to anticipate that other motorists will obey thetraffic laws and yield the right-of-way (see Parisi v Mitchell, 280 AD2d 589 [2001];Cenovski v Lee, 266 AD2d 424 [1999]). However, a driver who lawfully enters anintersection with a green light must exercise reasonable care and could still be found partially atfault for an accident if he or she fails to use reasonable care to avoid a collision with anothervehicle in the intersection (seeBorukhow v Cuff, 48 AD3d 726, 727 [2008]; see also Siegel v Sweeney, 266AD2d 200, 202 [1999]; Romano v 202 Corp., 305 AD2d 576, 577 [2003]).
In response to the appellants' prima facie showing of entitlement to judgment as a [*2]matter of law, the plaintiffs raised triable issues of fact as towhether the defendant Thomas E. Weil, Jr. (hereinafter Weil), failed to use reasonable care toavoid the accident (see generally Alvarez v Prospect Hosp., 68 NY2d 320 [1986];Zuckerman v City of New York, 49 NY2d 557 [1980]). Weil testified, inter alia, that thegreen light was in his favor, and that the defendant Peter G. Meyer drove through a red light andstruck the right side of his vehicle. However, a police report submitted in opposition to the crossmotion indicates that Weil's vehicle sustained damage to the front end and that Meyer's vehiclesustained damage to the driver's side doors, suggesting that Meyer's vehicle was positioned in ornear the subject intersection prior to the impact. Such evidence, considered in conjunction withWeil's conceded failure to see Meyer's vehicle prior to the impact, raised triable issues of factregarding Weil's attentiveness as he drove (see e.g. Gonzalez v County of Suffolk, 277AD2d 350, 351 [2000]).
Accordingly, the Supreme Court correctly denied the appellants' cross motion for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against them. Fisher,J.P., Balkin, Hall and Austin, JJ., concur.