| Reyes v Marchese |
| 2012 NY Slip Op 04988 [96 AD3d 926] |
| June 20, 2012 |
| Appellate Division, Second Department |
| Rosa Lia Reyes, Appellant, v Michael A. Marchese et al.,Respondents. (And Another Title.) |
—[*1] Paganini Cioci Pinter Cusumano & Farole (Gannon, Lawrence & Rosenfarb, New York,N.Y. [Lisa L. Gokhulsingh], of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by herbrief, from so much of an order of the Supreme Court, Queens County (Hart, J.), dated February1, 2011, as denied her motion for summary judgment on the issue of liability.
Ordered that the order is affirmed insofar as appealed from, with costs.
Pursuant to Vehicle and Traffic Law § 1141, the driver of a vehicle intending to turnleft "shall yield the right of way to any vehicle approaching from the opposite direction which is. . . so close as to constitute an immediate hazard." A plaintiff driver is entitled tojudgment as a matter of law if he or she demonstrates that the sole proximate cause of theaccident was the defendant driver's violation of Vehicle and Traffic Law § 1141 (see Gause v Martinez, 91 AD3d595 [2012]; Gabler v Marly Bldg.Supply Corp., 27 AD3d 519, 520 [2006]). The driver with the right-of-way is entitled toassume that the opposing driver will obey the traffic laws requiring him or her to yield (see Gause v Martinez, 91 AD3d595 [2012]; Ahern v Lanaia, 85AD3d 696 [2011]; Loch vGarber, 69 AD3d 814, 816 [2010]). However, a driver who has the right-of-way has aduty to exercise reasonable care to avoid a collision with another vehicle that allegedly failed toyield the right-of-way (see Wilson vRosedom, 82 AD3d 970 [2011]; Todd v Godek, 71 AD3d 872 [2010]; Cox v Nunez, 23 AD3d 427[2005]).
Here, in support of her summary judgment motion, the plaintiff submitted depositiontestimony and an excerpt of a surveillance video depicting the accident that failed to establishthat the defendant Michael A. Marchese's alleged violation of Vehicle and Traffic Law §1141 was the sole proximate cause of the accident (see Fogel v Rizzo, 91 AD3d 706 [2012]; Pollack v Margolin, 84 AD3d1341 [2011]; Todd v Godek, 71 AD3d at 873). In light of the plaintiff's failure tomeet her prima facie burden, we need not consider the sufficiency of the defendants' oppositionpapers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
Accordingly, the Supreme Court properly denied the plaintiff's motion for summaryjudgment on the issue of liability against the defendants Marchese and A-Val Architectural MetalCorp., which is Marchese's employer and the owner of the vehicle driven by Marchese.Angiolillo, J.P., Dickerson, Belen and Hall, JJ., concur.