| Lescenski v Williams |
| 2011 NY Slip Op 09756 [90 AD3d 1705] |
| December 30, 2011 |
| Appellate Division, Fourth Department |
| Bonica Lescenski, Individually and as Fiduciary of the Estate ofRobert A. Smith, Deceased, Appellant, v Michael J. Williams,Respondent. |
—[*1] Mackenzie Hughes LLP, Syracuse (Mark R. Schlegel of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Oswego County (James W. McCarthy, J.),entered July 13, 2010 in a wrongful death action. The order granted the motion of defendant forsummary judgment dismissing the complaint.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action, individually and as fiduciary of the estate ofRobert A. Smith (decedent), seeking damages for the wrongful death of decedent as the result ofan accident in a four-way intersection controlled by a traffic light. That accident occurred whenthe vehicle driven by decedent's wife and in which decedent was a passenger collided with thevehicle driven by defendant. We reject plaintiff's contention that Supreme Court erred in grantingdefendant's motion for summary judgment dismissing the complaint. It is well settled that adriver "who has the right[-]of[-]way is entitled to anticipate that [the drivers of] other vehicleswill obey the traffic laws that require them to yield" (Namisnak v Martin, 244 AD2d 258,260 [1997]; see Rogers v Edelman,79 AD3d 1803 [2010]; Wallace vKuhn, 23 AD3d 1042, 1043 [2005]). Defendant "met his initial burden by establishingas a matter of law 'that the sole proximate cause of the accident was [the] failure [of decedent'swife] to yield the right[-]of[-]way' to [defendant]" (Guadagno v Norward, 43 AD3d 1432, 1433 [2007]; see Galvinv Zacholl, 302 AD2d 965, 967 [2003], lv denied 100 NY2d 512 [2003]; Kelsey vDegan, 266 AD2d 843 [1999]). In support of the motion, defendant established that, asdecedent's wife approached the intersection, defendant was traveling at a lawful rate of speed,had the right-of-way with respect to her vehicle and did not have an opportunity to avoid theaccident.
In opposition to the motion, plaintiff failed to raise a triable issue of fact whetherdefendant was negligent based on his speed or failure to keep a proper lookout (see generallyZuckerman v City of New York, 49 NY2d 557, 562 [1980]). Contrary to plaintiff'scontention, "[t]he speculative affidavit of [her] expert containing alternative explanationsconcerning the manner in which the accident occurred is insufficient to defeat the motion"(Van Ostberg v Crane, 273 [*2]AD2d 895, 896 [2000]; see Wasson v Szafarski, 6 AD3d1182 [2004]). Present—Smith, J.P., Fahey, Peradotto, Carni and Sconiers, JJ.