| Alston v American Tr., Inc. |
| 2011 NY Slip Op 01934 [82 AD3d 546] |
| March 17, 2011 |
| Appellate Division, First Department |
| Diane Alston et al., Respondents, v American Transit, Inc.,et al., Appellants, and CCY Limo, Inc., et al., Respondents. |
—[*1] Jeffrey J. Shapiro & Associates, LLC, New York (Steven E. Millon of counsel), for DianeAlston and Regina Gilchrist, respondents. Kornfeld, Rew, Newman & Simeone, Suffern(William S. Badura of counsel), for CCY Limo, Inc. and Jesus Colon, respondents.
Order, Supreme Court, Bronx County (Cynthia S. Kern, J.), entered December 4, 2009,which, in an action for personal injuries sustained in a car accident, denied the motion ofdefendants American Transit, Inc. and Michael Barcene for summary judgment dismissing thecomplaint and all cross claims as against them, unanimously reversed, on the law, without costs,and the motion granted. The Clerk is directed to enter judgment accordingly.
The record demonstrates that defendant Barcene, the driver of an ambulette, was headedsouth and stopped in the left lane of a two-lane avenue waiting for the traffic light to change.Immediately in front of Barcene was a double-parked truck, in a position that straddled theparking lane adjacent to the curb and extended slightly into the left traffic lane in which Barcenewas waiting. When the light changed, Barcene passed the truck without having to leave the lefttraffic lane. Having completely passed the truck, and still driving in the left lane, Barcene'svehicle was struck on the driver's side by a cab driven by defendant Colon, which was pulling outfrom the curb after picking up plaintiffs as passengers.
The motion court erred in denying summary judgment to the driver and owner of theambulette based on the representation of plaintiff Alston that the ambulette "struck the entireright side" of the cab. This allegation, even if fully credited despite physical evidence to thecontrary, does not raise a triable issue of fact. Barcene, who testified without contradiction thathe proceeded in the left traffic lane and did not veer from that lane, "had the right-of-way andwas entitled to anticipate that [Colon] would obey traffic laws which required [him] to yield" (Jacino v Sugerman, 10 AD3d 593,595 [2004]). Alston's speculation that [*2]Barcene was speedingis insufficient to defeat the motion (seeMurchison v Incognoli, 5 AD3d 271 [2004]). Concur—Gonzalez, P.J., Tom,Acosta, Richter and RomÁn, JJ.