| Gallagher v McCurty |
| 2011 NY Slip Op 05663 [85 AD3d 1109] |
| June 28, 2011 |
| Appellate Division, Second Department |
| Stefani A. Gallagher, Appellant, v David E. McCurty,Respondent. |
—[*1] Hammill, O'Brien, Croutier, Dempsey, Pender & Koehler, P.C., Syosset, N.Y. (AntonPiotroski of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (DeStefano, J.), dated September 3, 2010, which granted thedefendant's motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff allegedly was injured when, after stopping at a stop sign, she drove into anintersection where her vehicle was struck by a vehicle operated by the defendant. The plaintiffcommenced this action against the defendant, alleging negligence. The defendant moved forsummary judgment dismissing the complaint, contending that the plaintiff's alleged negligencewas the sole proximate cause of the accident. The Supreme Court granted the defendant's motion.
The defendant made a prima facie showing of his entitlement to judgment as a matter of lawby presenting evidence that he entered the intersection with the right-of-way, and that, by failingto yield, the plaintiff violated Vehicle and Traffic Law § 1142 (a), which constitutednegligence as a matter of law (seeThompson v Schmitt, 74 AD3d 789 [2010]; McCain v Larosa, 41 AD3d 792, 793 [2007]; Gergis v Miccio, 39 AD3d 468[2007]). As the driver with the right-of-way, the defendant "was entitled to anticipate that theplaintiff would obey traffic laws which required her to yield" (Yelder v Walters, 64 AD3d 762, 764 [2009]; see Thompson vSchmitt, 74 AD3d at 790; Klein vCrespo, 50 AD3d 745, 745-746 [2008]). In opposition, the plaintiff's contention that thedefendant was traveling at an excessive rate of speed was conclusory and speculative, and, onthis record, failed to raise a triable issue of fact (see Thompson v Schmitt, 74 AD3d at790; Yelder v Walters, 64 AD3d at 765; McCain v Larosa, 41 AD3d at 793).
Accordingly, the Supreme Court properly granted the defendant's motion for summaryjudgment dismissing the complaint. Prudenti, P.J., Eng, Hall and Lott, JJ., concur. [PriorCase History: 2010 NY Slip Op 32510(U).]