| Liskiewicz v Hameister |
| 2013 NY Slip Op 01676 [104 AD3d 1194] |
| March 15, 2013 |
| Appellate Division, Fourth Department |
| Carrie Liskiewicz, Respondent, v Mary E. Hameister et al.,Appellants. |
—[*1] Adams, Hanson, Rego, Carlin, Hughes, Kaplan & Fishbein, Williamsville (BethanyA. Rubin of counsel), for plaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (Frederick J. Marshall, J.),entered December 21, 2011. The order granted the motion of plaintiff for summaryjudgment dismissing the counterclaim of defendants.
It is hereby ordered that the order so appealed from is unanimously affirmed withoutcosts.
Memorandum: Plaintiff commenced this action seeking damages for personalinjuries she sustained when her vehicle struck a vehicle owned by defendant James A.Corey and operated by defendant Mary E. Hameister. Plaintiff's vehicle, which wastraveling at the speed limit, hit the passenger's side of the vehicle driven by Hameisterwhen Hameister, after stopping at a stop sign, drove the vehicle through the intersectionand directly into the path of plaintiff's vehicle. Plaintiff was not subject to any trafficcontrol devices at the intersection.
We reject defendants' contention that Supreme Court erred in granting plaintiff'smotion for summary judgment dismissing defendants' counterclaim for contribution. "Itis well settled that a driver who has the right[-]of[-]way is entitled to anticipate that [thedrivers of] other vehicles will obey the traffic laws that require them to yield" (Lescenski v Williams, 90AD3d 1705, 1705 [2011], lv denied 18 NY3d 811 [2011] [internal quotationmarks omitted]). Here, plaintiff met her initial burden on the motion by establishing as amatter of law that the sole proximate cause of the accident was Hameister's failure toyield the right-of-way to plaintiff (see id. at 1706; Wallace v Kuhn, 23 AD3d1042, 1043 [2005]; see alsoLimardi v McLeod, 100 AD3d 1375, 1375 [2012]). In support of the motion,plaintiff submitted evidence demonstrating that, as Hameister approached theintersection, plaintiff "was traveling at a lawful rate of speed, had the right-of-way withrespect to her vehicle and did not have an opportunity to avoid the accident"(Lescenski, 90 AD3d at 1706). In response, defendants failed to "raise[ ] a triableissue of fact whether [plaintiff] was at fault in the happening of the accident or whether[s]he could have done anything to avoid the collision" (Wallace, 23 AD3d at1043 [internal quotation marks omitted]). "[Defendants'] contention that [plaintiff] couldbe found negligent because [s]he failed to see[*2][Hameister's] vehicle until immediately before the collisionis based on speculation and is insufficient to defeat a motion for summary judgment"(id. [internal quotation marks omitted]; see Lescenski, 90 AD3d at 1706).Present—Centra, J.P., Fahey, Carni, Sconiers and Valentino, JJ.