| Ducie v Ippolito |
| 2012 NY Slip Op 03802 [95 AD3d 1067] |
| May 15, 2012 |
| Appellate Division, Second Department |
| Christopher G. Ducie et al., Respondents, v Christine K.Ippolito, Appellant. |
—[*1] Proner & Proner, New York, N.Y. (Tobi R. Salottolo of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendant appeals, as limitedby her brief, from so much of an order of the Supreme Court, Suffolk County (Baisley, Jr., J.),entered June 22, 2011, as granted the plaintiffs' motion for summary judgment on the issue ofliability.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiffs Christopher G. Ducie and his wife, suing derivatively, demonstrated theirprima facie entitlement to judgment as a matter of law on the issue of liability by establishingthat the sole proximate cause of the subject accident was the defendant Christine E. Ippolito'sviolation of Vehicle and Traffic Law § 1141 in making a left turn when it was notreasonably safe to do so, directly into the path of Ducie's oncoming motorcycle which waslawfully present in the intersection (seeLoch v Garber, 69 AD3d 814, 815 [2010]; Palomo v Pozzi, 57 AD3d 498 [2008]; Spivak v Erickson, 40 AD3d 962,963 [2007]). Since Ducie had the right-of-way, he was entitled to assume that Ippolito wouldobey the traffic laws requiring her to yield to his motorcycle (see Almonte v Tobias, 36 AD3d 636 [2007]; Berner v Koegel, 31 AD3d 591,592 [2006]). "Although a driver with a right-of-way also has a duty to use reasonable care toavoid a collision, . . . a driver with the right-of-way who has only seconds to reactto a vehicle which has failed to yield is not comparatively negligent for failing to avoid thecollision" (Yelder v Walters, 64AD3d 762, 764 [2009] [citations omitted]; see Socci v Levy, 90 AD3d 1020, 1021 [2011]; Vainer v DiSalvo, 79 AD3d 1023,1024 [2010]). Here, the plaintiffs established Ducie's freedom from comparative fault through hisdeposition testimony, which was consistent with Ippolito's deposition testimony. That testimonyestablished that Ducie was already in the intersection when Ippolito began to make the turn infront of him, and Ducie immediately applied his brakes but was unable to avoid the collision.
In opposition, Ippolito's allegations that Ducie was traveling at an excessive rate of speed andcould have avoided the accident did not raise a triable issue of fact as to comparative fault. Thesecontentions were speculative and unsupported in light of Ducie's testimony that he was travelingabout 15 to 20 miles per hour, and Ippolito's testimony that she was unable to estimate [*2]Ducie's rate of speed and did not see his motorcycle before shemoved into his lane of travel (see Socci v Levy, 90 AD3d at 1021; Loch vGarber, 69 AD3d at 816; Yelder v Walters, 64 AD3d at 765). Accordingly, theSupreme Court properly granted the plaintiffs' motion for summary judgment on the issue ofliability. Angiolillo, J.P., Lott, Roman and Miller, JJ., concur.