| Rogers v Edelman |
| 2010 NY Slip Op 09804 [79 AD3d 1803] |
| December 30, 2010 |
| Appellate Division, Fourth Department |
| Autumn D. Rogers et al., Respondents, v Janna K. Edelman,Appellant. |
—[*1] Cellino & Barnes, P.C., Rochester (Charles F. Burkwit of counsel), forplaintiffs-respondents. Rupp, Baase, Pfalzgraf, Cunningham & Coppola LLC, Rochester (Matthew A. Lenhard ofcounsel), for plaintiff-respondent Eugene Rogers, on the counterclaim.
Appeal from an order of the Supreme Court, Wayne County (Dennis M. Kehoe, A.J.),entered December 30, 2009 in a personal injury action. The order, among other things, grantedplaintiffs' motion for summary judgment on the issue of negligence.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained whenthe vehicle driven by Eugene Rogers (plaintiff), in which plaintiff Autumn D. Rogers was apassenger, collided with a vehicle driven by defendant. We conclude that Supreme Courtproperly granted the motion of plaintiff for summary judgment dismissing the counterclaimagainst him, as well as the "cross motion" of both plaintiffs for partial summary judgment on theissue of negligence. It is undisputed that the collision occurred when defendant, who was turninginto a driveway, turned left in front of plaintiffs' oncoming vehicle. Plaintiffs testified at theirrespective depositions that their vehicle was traveling at or below the speed limit, that they sawdefendant's vehicle for some distance before it turned, and that, when defendant's vehicle turnedleft, there was no opportunity to avoid the accident. Defendant, on the other hand, testified at herdeposition that she never saw plaintiffs' vehicle prior to the collision.
It is well settled that "[a driver] who has the right of way is entitled to anticipate that othervehicles will obey the traffic laws that require them to yield" (Namisnak v Martin, 244AD2d 258, 260 [1997]; see Wallace vKuhn, 23 AD3d 1042, 1043 [2005]; Doxtader v Janczuk, 294 AD2d 859 [2002],lv denied 99 NY2d 505 [2003]). "Plaintiff[s] met [their] initial burden by establishing asa matter of law 'that the sole proximate cause of the accident was defendant's failure to yield theright of way' to plaintiff[s]" (Guadagnov Norward, 43 AD3d 1432, 1433 [2007]; see Kelsey v Degan, 266 AD2d 843[1999]; Galvin v Zacholl, 302 AD2d 965, 967 [2003], lv denied 100 NY2d 512[2003]), and defendant failed to raise a triable issue of fact (see generally Zuckerman v Cityof New York, 49 NY2d 557, 562 [1980]). Contrary to defendant's contention, plaintiffestablished as a matter of law that he "was free from fault in the occurrence of the accident" (Hillman v Eick, 8 AD3d 989, 991[2004]). Present—Martoche, J.P., Centra, Fahey, Lindley and Sconiers, JJ. [Prior CaseHistory: 2009 NY Slip Op 32912(U).]