| Smalls v Adams |
| 2014 NY Slip Op 04001 [118 AD3d 693] |
| June 4, 2014 |
| Appellate Division, Second Department |
[*1]
| Barbara Smalls, Respondent, v Deborah Adamset al., Respondents, and Clifford Thomas, Appellant. |
Martyn, Toher, Martyn & Rossi, Mineola, N.Y. (Lisa M. Rossi of counsel), forappellant.
Jacoby & Meyers, LLC, Newburgh, N.Y. (James W. Shuttleworth III ofcounsel), for plaintiff-respondent.
Russo, Apoznanski & Tambasco, Westbury, N.Y. (Susan J. Mitola and YamileAl-Sulami of counsel), for defendants-respondents.
In an action to recover damages for personal injuries, the defendant Clifford Thomasappeals, as limited by his brief, from so much of an order of the Supreme Court, NassauCounty (Mahon, J.), dated November 28, 2012, as denied his motion for summaryjudgment dismissing the complaint insofar as asserted against him.
Ordered that the order is reversed insofar as appealed from, on the law, with one billof costs payable by the respondents appearing separately and filing separate briefs, andthe motion of the defendant Clifford Thomas for summary judgment dismissing thecomplaint insofar as asserted against him is granted.
The plaintiff allegedly was injured when the vehicle in which she was a passenger,operated by the defendant Ayesia Adams and owned by the defendant Deborah Adams(hereinafter together the Adams defendants), collided with a vehicle owned and operatedby the defendant Clifford Thomas. Thomas was driving his vehicle in the left eastboundlane on Hempstead Turnpike, Nassau County, a four-lane thoroughfare with twoeastbound lanes and two westbound lanes. Just prior to the collision, Ayesia Adams hadstopped her vehicle at the exit of a Wendy's restaurant parking lot, which abutted theright eastbound lane of Hempstead Turnpike, and then proceeded into that lane,perpendicular to oncoming eastbound traffic. As a truck traveling eastbound in that laneapproached her vehicle, Ayesia Adams stopped, as did the truck. When the truckstopped, Ayesia Adams continued to proceed straight across that lane, still perpendicularto traffic, entering the left eastbound lane, where her vehicle and Thomas's vehiclecollided. Thomas moved for summary judgment dismissing the complaint insofar asasserted against him. The Supreme Court denied Thomas's motion, concluding thattriable issues of fact existed.
[*2] Thomasestablished his prima facie entitlement to judgment as a matter of law by presentinguncontroverted evidence that Ayesia Adams negligently drove her vehicle ontoHempstead Turnpike perpendicular to two lanes of oncoming traffic, in violation ofVehicle and Traffic Law § 1162, that he was free from comparative fault,and that her conduct was the sole proximate cause of the accident (see Vainer v DiSalvo, 79AD3d 1023, 1024 [2010]). In support of his motion for summary judgment, Thomassubmitted his deposition testimony, as well as the deposition testimony of the plaintiffand the defendant Ayesia Adams. According to the deposition testimony of both AyesiaAdams and the plaintiff, prior to the collision, the vehicle driven by Ayesia Adams wasstopped at a parking lot exit abutting Hempstead Turnpike, where there is neither a streetintersection nor any traffic control device. Both Ayesia Adams and the plaintiff testifiedthat Ayesia Adams drove the vehicle into the right eastbound lane of HempsteadTurnpike perpendicular to oncoming traffic and stopped suddenly in the right lane whenthey realized that a truck was proceeding toward them in that lane. When the truckstopped before it reached their vehicle, Ayesia Adams then proceeded to drive into theleft eastbound lane, even though her view of that lane was obstructed by the truck. By sodoing, Ayesia Adams failed to yield the right of way to Thomas, who was travelingeastbound in the left lane and whom she couldn't see because the truck blocked herview.
Thomas established, prima facie, that Ayesia Adams's conduct violated Vehicle andTraffic Law § 1162, which provides that "[n]o person shall move a vehiclewhich is stopped . . . unless and until such movement can be made withreasonable safety." A violation of the Vehicle and Traffic Law constitutes negligence asa matter of law (see Vainer v DiSalvo, 79 AD3d at 1024).
Thomas also established, prima facie, that Ayesia Adams' negligence was the soleproximate cause of the accident. At his deposition, Thomas gave uncontrovertedtestimony that, immediately prior to the collision, he was traveling eastbound in the leftlane of Hempstead Turnpike at a speed that did not exceed 20 miles per hour. As a driverwith the right-of-way, Thomas was entitled to anticipate that Ayesia Adams would obeythe traffic law requiring her to yield (see Jacino v Sugerman, 10 AD3d 593, 595 [2004]).According to Thomas's deposition testimony, he did not see the vehicle driven by AyesiaAdams until "less than a second" before it collided with the right rear panel of his fourdoor Suburban. Thomas's testimony that he had "less than a second" to react before thecollision and that he could not veer to the left due to oncoming traffic demonstrated,prima facie, that he was not comparatively at fault for failing to evade the collision. Adriver with the right-of-way who has only seconds to react to a vehicle which has failedto yield is not comparatively at fault for failing to avoid the collision (see Yelder v Walters, 64 AD3d762, 764 [2009]).
In opposition, the plaintiff and the Adams defendants failed to raise a triable issue offact (see Torro v Schiller, 8AD3d 364, 365 [2004]; Rotuba Extruders v Ceppos, 46 NY2d 223, 231[1978]). They relied on immaterial inconsistencies in the parties' testimony, speculation,and conjecture, as well as Ayesia Adams's self-serving testimony, which contradicted herother testimony, to create feigned issues of fact. This evidence is insufficient to defeatThomas's motion for summary judgment (see Soussi v Gobin, 87 AD3d 580, 581-582 [2011];Rotuba Extruders v Ceppos, 46 NY2d at 231).
Accordingly, the Supreme Court should have granted Thomas's motion for summaryjudgment dismissing the complaint insofar as asserted against him. Rivera, J.P., Lott,Miller and Duffy, JJ., concur.