| Vainer v DiSalvo |
| 2010 NY Slip Op 09504 [79 AD3d 1023] |
| December 21, 2010 |
| Appellate Division, Second Department |
| Shiran Vainer, Plaintiff, v C.J. DiSalvo et al., Respondents, andAlexza Santiago, Appellant. |
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In an action to recover damages for personal injuries, the defendant Alexza Santiago appeals froman order of the Supreme Court, Kings County (Martin, J.), dated May 11, 2010, which denied hermotion for summary judgment dismissing the complaint and all cross claims insofar as asserted againsther.
Ordered that the order is reversed, on the law, with costs payable by the defendants C.J. DiSalvoand Joanne M. DiSalvo, and the motion of the defendant Alexza Santiago for summary judgmentdismissing the complaint and all cross claims insofar as asserted against her is granted.
The plaintiff allegedly was injured when she was a passenger in a vehicle owned and operated bythe defendant Alexza Santiago, which collided with a vehicle owned by the defendant Joanne M.DiSalvo and operated by the defendant C.J. DiSalvo (hereinafter C.J.; together the DiSalvos).Immediately preceding the accident, the two vehicles were traveling in the same direction on Ring Roadwhich encircles the parking area at the Staten Island Mall (hereinafter the mall), with Santiago's cartraveling in the right lane and C.J.'s car in the left lane. When C.J. observed a parking spot located tothe right of Ring Road in the parking lot of the mall, he made a sudden right turn in front of the lane inwhich Santiago's car was traveling in an attempt to enter the parking lot.
Santiago moved for summary judgment dismissing the complaint and all cross claims insofar asasserted against her. While the plaintiff did not oppose Santiago's motion, the DiSalvos did. TheSupreme Court denied Santiago's motion, finding that a triable issue of fact existed. We reverse.
Santiago established her prima facie entitlement to judgment as a matter of law by presentinguncontroverted evidence that C.J. made a sudden right turn from the left lane in violation of Vehicle andTraffic Law § 1128 (a); § 1160 (a) and § 1163 (a). C.J. testified at his depositionthat, as he was driving in the left lane, he saw a parking spot in the parking lot to the right of Ring Road,causing him to turn right from the left lane crossing the right lane in which Santiago was traveling so thatthe accident occurred as his vehicle was perpendicular to Ring Road. C.J. also testified that heobserved the parking spot only seconds before the accident occurred. The plaintiff and Santiagosubmitted affidavits corroborating C.J.'s version of how the accident occurred.
A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law (see Boterov Erraez, 289 AD2d 274 [2001]; Ferrara v Castro, 283 AD2d 392 [2001]; Packer vMirasola, 256 AD2d 394 [1998]). Through C.J.'s testimony and the affidavits, Santiagoestablished that DiSalvo was negligent as a matter of law (see e.g. Dimou v Iatauro, 72 AD3d 732 [2010]; Blangiardo v Hirsch, 29 AD3d 841[2006]; Gomez [*2]v Sammy's Transp., Inc., 19 AD3d 544 [2005]; Bous vFahey, 250 AD2d 638 [1998]). She also established that C.J.'s negligence was the sole proximatecause of the accident, without any comparative negligence on her part. While a driver is required to"see that which through proper use of [his or her] senses [he or she] should have seen" (Bongiovi v Hoffman, 18 AD3d 686,687 [2005] [internal quotation marks omitted]; see Thompson v Schmitt, 74 AD3d 789 [2010]; Mohammad v Ning, 72 AD3d 913,915 [2010]; Bolta v Lohan, 242 AD2d 356 [1997]), a driver who has the right-of-way isentitled to anticipate that the other motorist will obey the traffic law requiring him or her to yield (see Platt v Wolman, 29 AD3d 663[2006]; Dileo v Barreca, 16 AD3d366, 367-368 [2005]; Morgan vHachmann, 9 AD3d 400 [2004]). "[A] driver with the right-of-way who has only seconds toreact to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision"(Yelder v Walters, 64 AD3d 762,764 [2009]; see Jaramillo v Torres, 60AD3d 734 [2009]; DeLuca vCerda, 60 AD3d 721 [2009]; Lupowitz v Fogarty, 295 AD2d 576 [2002]).
In opposition to Santiago's prima facie showing of her entitlement to judgment as a matter of law,the DiSalvos failed to raise a triable issue of fact. The DiSalvos' opposition to the motion, in part,consisted of speculative assertions (seeThompson v Schmitt, 74 AD3d 789 [2010]; Barbaruolo v DiFede, 73 AD3d 957 [2010]; Persaud v Darbeau, 13 AD3d 347,348 [2004]; Ferrara v Castro, 283 AD2d 392 [2001]), and otherwise failed to raise a triableissue of fact as to whether Santiago was negligent in failing to avoid the collision (see DeLuca v Cerda, 60 AD3d 721[2009]; Lupowitz v Fogarty, 295 AD2d 576 [2002]).
Accordingly, the Supreme Court should have granted Santiago's motion for summary judgmentdismissing the complaint and all cross claims insofar as asserted against her. Dillon, J.P., Angiolillo,Belen and Roman, JJ., concur.