| Socci v Levy |
| 2011 NY Slip Op 09620 [90 AD3d 1020] |
| December 27, 2011 |
| Appellate Division, Second Department |
| Christopher G. Socci, Appellant, v Louis Levy et al.,Respondents. |
—[*1] Verrill & Goodstein (Crafa & Sofield, P.C., Rockville Centre, N.Y. [Thomas R. Sofield], ofcounsel), for respondents.
In an action to recover damages for personal injuries, etc., the plaintiff appeals from an orderof the Supreme Court, Suffolk County (Rebolini, J.), entered March 7, 2011, which denied hismotion for summary judgment on the issue of liability.
Ordered that the order is reversed, on the law, with costs, and the plaintiff's motion forsummary judgment on the issue of liability is granted.
On March 7, 2009, the plaintiff was operating his motorcycle northbound on New York StateRoute 110 (hereinafter Route 110) in Huntington. The defendant Louis Levy (hereinafter Levy),who was operating a motor vehicle owned by the defendant Barbara Levy, was stopped in thededicated left-turn lane on southbound Route 110, at the intersection of Schwab Road, waiting tomake a U-turn into the northbound lanes of Route 110. In the process of making the U-turn, Levycollided with the plaintiff, allegedly causing injuries to the plaintiff. The plaintiff thencommenced this action against the defendants. After discovery, the plaintiff moved for summaryjudgment on the issue of liability. In support of his motion, the plaintiff submitted his owndeposition testimony, as well as Levy's deposition testimony and that of a nonparty witness. TheSupreme Court denied the plaintiff's motion, and the plaintiff appeals. We reverse.
Even when viewed in the light most favorable to the nonmoving party—here thedefendants (see Stukas v Streiter, 83AD3d 18 [2011])—the evidence submitted by the plaintiff in support of the motionestablished, prima facie, that the sole proximate cause of the accident was Levy's failure to yieldthe right-of-way to the plaintiff's motorcycle (see Kutkiewicz v Horton, 83 AD3d 904 [2011]; Vainer v DiSalvo, 79 AD3d 1023,1024 [2010]; Yelder v Walters, 64AD3d 762, 763-764 [2009]; Palomo v Pozzi, 57 AD3d 498 [2008]). The plaintiff testified at hisdeposition that the vehicle operated by Levy was approximately three inches away from hismotorcycle when Levy made the U-turn, and immediately collided with the motorcycle. " '[A]driver with the right-of-way who has only seconds to react to a vehicle which has failed to yieldis not comparatively negligent for failing to avoid the collision' " (Vainer v DiSalvo, 79AD3d at 1024, quoting Yelder v Walters, 64 AD3d at 764; see Jaramillo v [*2]Torres, 60 AD3d 734 [2009]).
In opposition, the defendants failed to raise a triable issue of fact as to whether the plaintiffwas at fault in the happening of the accident (see Vainer v DiSalvo, 79 AD3d at 1024;Yelder v Walters, 64 AD3d at 764). To the extent that the defendants suggest thepossibility that the accident might have been avoided, the assertion is completely speculative andis inadequate to withstand summary judgment (see Loch v Garber, 69 AD3d 814, 816 [2010]; Berner v Koegel, 31 AD3d 591,592 [2006]; Jacino v Sugerman, 10AD3d 593, 595 [2004]).
Accordingly, the Supreme Court improperly denied the plaintiff's motion for summaryjudgment on the issue of liability. Skelos, J.P., Belen, Lott and Cohen, JJ., concur.