| Heath v Liberato |
| 2011 NY Slip Op 01803 [82 AD3d 841] |
| March 8, 2011 |
| Appellate Division, Second Department |
| Vernon S. Heath, Respondent, v Juan R. Liberato,Appellant. |
—[*1] Tantleff, Cohen & Tantleff, P.C., Brooklyn, N.Y. (Edward D. Tantleff of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Kings County (Schack, J.), dated July 19, 2010, which granted the plaintiff'smotion for summary judgment on the issue of liability.
Ordered that the order is affirmed, with costs.
The plaintiff made a prima facie showing of entitlement to judgment as a matter of law onthe issue of liability by demonstrating that the defendant driver violated Vehicle and Traffic Law§ 1141 when he made a left turn directly into the path of the plaintiff's vehicle and therebyfailed to yield the right of way to the plaintiff (see Berner v Koegel, 31 AD3d 591 [2006]; Gabler v Marly Bldg. Supply Corp., 27AD3d 519 [2006]; Maloney vNiewender, 27 AD3d 426 [2006]). The plaintiff submitted an affidavit whichestablished that he was lawfully proceeding into the intersection with a green light in his favorwhen the defendant made a left turn into the intersection. The defendant admitted in an affidavitthat he never saw the plaintiff's vehicle, as he believed the intersection was "clear" before hemade his left turn at the green light. A driver is negligent if he or she fails to see that whichthrough proper use of the senses should have been seen (see Breslin v Rudden, 291 AD2d471 [2002]; Botero v Erraez, 289 AD2d 274 [2001]; Ferrara v Castro, 283 AD2d392 [2001]).
In opposition, the defendant failed to raise a triable issue of fact. The defendant's oppositionmerely raised "feigned" issues of fact, which are insufficient to defeat a motion for summaryjudgment (Capraro v Staten Is. Univ. Hosp., 245 AD2d 256, 257 [1997]; see Miller vCity of New York, 214 AD2d 657 [1995]; Garvin v Rosenberg, 204 AD2d 388[1994]). The defendant also failed to demonstrate that further discovery was warranted (see Benedikt v Certified Lbr. Corp., 60AD3d 798 [2009]; Lopez v WSDistrib., Inc., 34 AD3d 759 [2006]).
Accordingly, the Supreme Court properly granted the plaintiff's motion for summaryjudgment on the issue of liability. Mastro, J.P., Balkin, Leventhal and Miller, JJ., concur.