| Barbaruolo v DiFede |
| 2010 NY Slip Op 04324 [73 AD3d 957] |
| May 18, 2010 |
| Appellate Division, Second Department |
| Angelo Barbaruolo, Respondent, v Robert F. DiFede et al.,Appellants. |
—[*1] Duffy & Duffy, Uniondale, N.Y. (Michael A. Santo of counsel), for respondent.
In an action, inter alia, to recover damages for personal injuries, etc., the defendants appealfrom an order of the Supreme Court, Nassau County (Brandveen, J.), dated July 7, 2009, whichdenied their motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is granted.
A driver is not required to anticipate that an automobile going in the opposite direction willcross over into oncoming traffic (seeSnemyr v Morales-Aparicio, 47 AD3d 702, 703 [2008]; Lee v Ratz, 19 AD3d 552, 553[2005]). Indeed, "[c]rossing a double yellow line into the opposing lane of traffic, in violation ofVehicle and Traffic Law § 1126 (a), constitutes negligence as a matter of law, unlessjustified by an emergency situation not of the driver's own making" (Foster v Sanchez, 17 AD3d 312,313 [2005]; see Sullivan vMandato, 58 AD3d 714, 714 [2009]; Haughey v Noone, 262 AD2d 284, 284[1999]). Here, the defendants established their prima facie entitlement to judgment as a matter oflaw by submitting evidence demonstrating that the plaintiff's decedent violated Vehicle andTraffic 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, 785 [2008]; Snemyr vMorales-Aparicio, 47 AD3d at 703). In opposition, the plaintiff failed to submit evidencesufficient to raise a triable issue of fact. As the plaintiff correctly points out, since the decedentdied as a result of the accident and is thus unable to describe the events in question, the plaintiffis entitled to every inference that can reasonably be drawn from the evidence in determiningwhether a prima facie case of negligence is made (see Noseworthy v City of New York,298 NY 76, 80 [1948]). However, it does not relieve the plaintiff of the obligation to providesome proof from which negligence can reasonably be inferred (see Marsch v Catanzaro, 40 AD3d941, 942 [2007]). Mere speculation that the defendant driver could have done something toavoid a vehicle crossing over a double yellow line is insufficient to defeat a motion for summaryjudgment (see Eichenwald vChaudhry, 17 AD3d 403 [2005]). Here, the plaintiff failed to come forward with anyevidence from which negligence on the part of the defendants could reasonably have beeninferred. Fisher, J.P., Dillon, Dickerson and Eng, JJ., concur.