| Adobea v Junel |
| 2014 NY Slip Op 01143 [114 AD3d 818] |
| February 19, 2014 |
| Appellate Division, Second Department |
| Rebecca Adobea et al., Appellants, v Ahmed Junelet al., Respondents. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C. (Marjorie E. Bornes, Brooklyn, N.Y.,of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal froman order of the Supreme Court, Queens County (Strauss, J.), entered April 9, 2013, whichgranted the defendants' motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The injured plaintiff, and her husband suing derivatively, commenced this action torecover damages for injuries she allegedly sustained in a motor vehicle accident. Theinjured plaintiff was a passenger in a cab driven by the defendant Junel Ahmed, suedhere as Ahmed Junel, and owned by the defendant QLR Seven, Inc. Ahmed had beendriving the cab in the right westbound lane of the Horace Harding Expressway in Queenswhen another vehicle, operated and owned by individuals who are not parties to thisaction, attempted to merge into that lane of travel from a parked position and came intocontact with the defendants' vehicle. The accident occurred about 50 feet from thenearest intersection.
The defendants moved for summary judgment dismissing the complaint, and theSupreme Court granted the defendants' motion. The plaintiffs appeal.
A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law(see Vainer v DiSalvo, 79AD3d 1023, 1024 [2010]; Jones v Radeker, 32 AD3d 494, 496 [2006]). "The driverwith the right-of-way is entitled to anticipate that the other motorist will obey traffic lawswhich require him or her to yield" (Williams v Hayes, 103 AD3d 713, 714 [2013]; see Figueroa v Diaz, 107AD3d 754, 755 [2013]; Rahaman v Abodeledhman, 64 AD3d 552, 553 [2009]; see also Dimou v Iatauro, 72AD3d 732, 733-734 [2010]). Vehicle and Traffic Law § 1143 provides that"[t]he driver of a vehicle about to enter or cross a roadway from any place other thananother roadway shall yield the right of way to all vehicles approaching on the roadwayto be entered or crossed." Vehicle and Traffic Law § 1162 requires that "[n]operson shall move a vehicle which is stopped, standing, or parked unless and until suchmovement can be made with reasonable safety."
" 'There can be more than one proximate cause of an accident' " (Lopez v Reyes-Flores, 52AD3d 785, 786 [2008], quoting Cox v Nunez, 23 AD3d 427, 427 [2005]). This is becauseeach driver [*2]has a duty to exercise reasonable careunder the circumstances to avoid an accident (see Lu Yuan Yang v Howsal Cab Corp., 106 AD3d 1055,1056 [2013]; Cajas-Romero vWard, 106 AD3d 850, 851 [2013]; Shui-Kwan Lui v Serrone, 103 AD3d 620 [2013]). As aresult, even where there is evidence that another driver involved in the accident wasnegligent as a matter of law due to a violation of the Vehicle and Traffic Law, "theproponent of a summary judgment motion has the burden of establishing freedom fromcomparative negligence as a matter of law" (Pollack v Margolin, 84 AD3d 1341, 1342 [2011]; see Regans v Baratta, 106AD3d 893, 894 [2013]; Shui-Kwan Lui v Serrone, 103 AD3d at 620; Gardella v Esposito Foods,Inc., 80 AD3d 660, 660 [2011]). Thus, a driver traveling with the right-of-waymay nevertheless be found to have contributed to the happening of the accident if he orshe did not use reasonable care to avoid the accident (see Todd v Godek, 71 AD3d 872 [2010]).
Here, the defendants met their prima facie burden of demonstrating their entitlementto judgment as a matter of law. Ahmed's deposition testimony that the driver of the othervehicle suddenly, without signaling, attempted to merge from the parking lane into thelane in which Ahmed had been traveling, and that Ahmed saw that other vehicle only"for a second" before the impact occurred, established that the other driver violatedVehicle and Traffic Law §§ 1143 and 1162 so that the other driver wasnegligent as a matter of law (see Vainer v DiSalvo, 79 AD3d at 1024; Jones vRadeker, 32 AD3d at 496). Ahmed's deposition testimony also demonstrated thatAhmed was free from fault in the happening of the accident, and that the other driver'snegligence was the sole proximate cause of the accident (see Barbato v Maloney, 94AD3d 1028, 1029 [2012]; Recinos v Priamo, 94 AD3d 848, 848 [2012]; Vainer vDiSalvo, 79 AD3d at 1024). "[A] driver with the right-of-way who has only secondsto react to a vehicle that has failed to yield is not comparatively negligent for failing toavoid the collision" (Vazquez vNew York City Tr. Auth., 94 AD3d 870, 871 [2012]; see Figueroa vDiaz, 107 AD3d at 755; Vainer v DiSalvo, 79 AD3d at 1024; Yelder v Walters, 64 AD3d762, 764 [2009]; Jaramillov Torres, 60 AD3d 734, 735 [2009]).
In opposition, the plaintiffs failed to raise a triable issue of fact. The injuredplaintiff's deposition testimony that Ahmed was speeding, by itself, was insufficient toraise a triable issue of fact. The injured plaintiff testified at her deposition that she wasunaware of the rate of speed Ahmed was actually traveling, that she was unaware of thespeed limit for that section of the Horace Harding Expressway, and that she was notpaying attention before the impact occurred because she was busy playing with herchildren in the back seat. Under those circumstances, any conclusion that the rate ofspeed Ahmed was traveling contributed to the accident would be mere speculation (see Colandrea v Choku, 94AD3d 1034, 1036 [2012]; see e.g. Rahaman v Abodeledhman, 64 AD3d at553-554; Strocchia v City ofNew York, 70 AD3d 926, 927 [2010]; Batts v Page, 51 AD3d 833, 834 [2008]).
Moreover, the police accident report submitted by the plaintiffs in opposition to thedefendants' motion was inadmissible, as it was not certified as a business record(see CPLR 4518 [a]; Hazzard v Burrowes, 95 AD3d 829 [2012]; Hernandez v Tepan, 92 AD3d721, 722 [2012]; CheulSoo Kang v Violante, 60 AD3d 991, 991 [2009]; Noakes v Rosa, 54 AD3d317 [2008]). Contrary to the plaintiffs' contention, the party admission exception tothe hearsay rule did not apply because the statement from Ahmed which was recorded inthe police accident report was not against his own interest, and the other statementrecorded in the police accident report was not made by a party to this action (cf. Jackson v Trust, 103 AD3d851, 852 [2013]; Scott vKass, 48 AD3d 785, 786 [2008]; Kemenyash v McGoey, 306 AD2d516, 516 [2003]; Guevara v Zaharakis, 303 AD2d 555 [2003]).
The plaintiffs' remaining contentions are without merit.
Accordingly, the Supreme Court properly granted the defendants' motion forsummary judgment dismissing the complaint. Dillon, J.P., Dickerson, Austin and Sgroi,JJ., concur.