In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Lane, J.), entered May 27, 2008, which denied their motion for summary judgment dismissing the complaint.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
A. GAIL PRUDENTI, P.J., PETER B. SKELOS, MARK C. DILLON and RANDALL T. ENG, JJ.
ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is granted.
This action arises from an accident which occurred at the intersection of Linden Boulevard and 159th Street in Queens, when a vehicle operated by the plaintiff, Shakia M. Yelder, collided with a vehicle operated by the defendant Alvin Francis. At the time of the accident, the plaintiff, who was employed by the New York City Police Department as a traffic enforcement agent, was driving her patrol car south on 159th Street. Francis was driving a minivan owned by the defendant Newton V. Walters east on Linden Boulevard, which is a two-way street with opposite lanes of travel separated by a double yellow line. It is undisputed that traffic on 159th Street at its intersection with Linden Boulevard is controlled by a stop sign, while Linden Boulevard is a through street.
At her deposition, the plaintiff, who was 21 years old at the time of the accident, testified that she came to a full stop at the stop sign governing traffic on 159th Street, and looked both ways before entering the intersection. She maintained that the closest vehicles she observed were stopped at a red light two blocks away from the intersection. Looking straight ahead, the plaintiff proceeded across the intersection at a speed of about 10 to 15 miles per hour. After crossing the double yellow line separating the west and east bound lanes of traffic on Linden Boulevard, the plaintiff's vehicle was struck by Francis's vehicle, which the plaintiff had not seen prior to the collision.
Francis, who was 20 years old at the time of the accident and did not have a driver's license, testified at his deposition that he was driving east on Linden Boulevard, and that the maximum speed he attained was between 20 and 30 miles per hour. He recalled that there were vehicles in front of him as he approached the intersection of Linden Boulevard and 159th Street, and estimated that the closest of these vehicles was three to four car lengths ahead. Francis stated that he saw the plaintiff's vehicle "immediately before the collision," and estimated that three to five seconds elapsed from the moment he saw her vehicle until the moment of impact. When Francis first saw the plaintiff's vehicle, he "tried to swerve out of the way," by swerving to the right. However, the plaintiff's vehicle collided with the front driver's side of his vehicle. Francis testified that his foot was on the gas pedal when he first saw the plaintiff's vehicle, but he was not specifically questioned as to whether he removed his foot from the gas and hit the brake pedal prior to the collision.
Relying on the deposition testimony of the parties, the defendants moved for summary judgment, contending that the sole proximate cause of the accident was the plaintiff's failure to yield the right-of-way in violation of Vehicle and Traffic Law § 1142(a). In opposition to the motion, the plaintiff argued that the deposition testimony raised triable issues of fact as to which vehicle entered the intersection first, what Francis's speed was at the time of the accident, and whether Francis had the opportunity to avoid the collision. In support of her position, the plaintiff emphasized her testimony that she had crossed over half of Linden Boulevard prior to the collision, and submitted that the jury could infer that Francis's vehicle was stopped at a red light two blocks away when she entered the intersection and that he was, thus, traveling at a high rate of speed. The Supreme Court denied the defendants' motion for summary judgment, finding that there were issues of fact as to which vehicle entered the intersection first, and whether there was any comparative negligence. We reverse.
The defendants made a prima facie showing of their entitlement to judgment as a matter of law through the deposition testimony of the parties. The plaintiff, operating her vehicle on a street governed by a stop sign, was required not only to stop, but to yield to vehicles on the intersecting thoroughfare operating with the right-of-way (see Vehicle and Traffic Law § 1142[a]). The plaintiff also was required to see the oncoming traffic through the proper use of her senses (see Goemans v County of Suffolk, 57 AD3d 478, 479; Hull v Spagnoli, 44 AD3d 1007; Friedberg v Citiwide Auto Leasing, Inc., 22 AD3d 522, 523). Thus, the plaintiff's failure to yield to Francis's vehicle, which was traveling on Linden Boulevard with the right-of-way, and her admitted failure to see that vehicle until the moment of impact, demonstrates her negligence as a matter of law (see Jones v Castro-Tinco, 62 AD3d 957; Jaramillo v Torres, 60 AD3d 734; Wesh v Laidlaw, 59 AD3d 534; Goemans v County of Suffolk, 57 AD3d 478, 479; Hull v Spagnoli, 44 AD3d at 1007; Friedberg v Citiwide Auto Leasing, Inc., 22 AD3d at 522; Bongiovi v Hoffman, 18 AD3d 686, 687). Indeed, it has been observed under similar circumstances that "the undisputed fact that plaintiff was unable to drive through the intersection without being struck by defendant's vehicle is compelling evidence of the immediate hazard created by defendant's vehicle as it approached the intersection" (Le Claire v Pratt, 270 AD2d 612, 613).
Furthermore, we disagree with our dissenting colleague's conclusion that Francis's deposition testimony was insufficient to make a prima facie showing that he was free from comparative negligence. Regardless of which vehicle entered the intersection first, Francis, as the driver with the right-of-way, was entitled to anticipate that the plaintiff would obey traffic laws which required her to yield (see Wesh v Laidlaw, 59 AD3d at 534; Goemans v County of Suffolk, 57 AD3d at 479; Melendez v County of Nassau, 56 AD3d 736, 738; Friedberg v Citiwide Auto Leasing, Inc., 22 AD3d at 523; Bongiovi v Hoffman, 18 AD3d at 687). Although a driver with a right-of-way also has a duty to use reasonable care to avoid a collision (see Maliza v Puerto-Rican Transp. Corp., 50 AD3d 650, 651; Exime v Williams, 45 AD3d 633; Mateiasevici v Daccordo, 34 AD3d 651), it has been recognized that a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision (see Jaramillo v Torres, 60 AD3d at 735; DeLuca v Cerda, 60 AD3d 721; Meliarenne v Prisco, 9 AD3d 353, 353; Le Claire v Pratt, 270 AD2d at 613; Lupowitz v Fogarty, 295 AD2d 576). Moreover, Francis' deposition testimony demonstrates that he did indeed attempt to take evasive action by swerving out of the path of the plaintiff's vehicle. Although Francis did not specifically indicate that he also attempted to avoid the collision by braking, given the brevity of the period in which he had to react, his testimony was sufficient to demonstrate that he acted reasonably.
Furthermore, in opposition to summary judgment, the plaintiff failed to raise a triable issue of fact. In light of the plaintiff's admission that she did not see Francis's vehicle before the impact, her allegation that he may have been negligently traveling at an excessive rate of speed was speculative and, thus, insufficient to defeat summary judgment (see Batts v Page, 51 AD3d 833, 834; McCain v LaRosa, 41 AD3d 792, 793; Exime v Williams, 45 AD3d at 634; Mateiasevici v Daccordo, 34 AD3d at 651; Trzepacz v Jara, 11 AD3d 531; Meliarenne v Prisco, 9 AD3d at 354).
We note that our dissenting colleague, focusing on Francis's testimony that three to five seconds elapsed between the time he observed the plaintiff's vehicle and the collision, and that he was traveling no faster than 30 miles per hour, offers various calculations as to the number of feet Francis had to stop to avoid the collision, using the formula SPEED ÷ TIME = DISTANCE. However, the plaintiff made no such argument in opposition to summary judgment, and offered no expert's affidavit to calculate the distance which Francis had to avoid the accident. As the Court of Appeals recently cautioned, appellate courts "are not in the business of blindsiding litigants, who expect us to decide their appeals on rationales advanced by the parties, not arguments their adversaries never made" (Misicki v Caradonna, 12 NY3d 511). Thus, as a matter of fairness to the parties, we do not deem it appropriate to consider the issue of whether Francis was comparatively negligent on a ground they have not raised. In any event, by attempting to calculate the number of feet in which Francis had to respond from the first moment he saw the plaintiff's vehicle, the dissent disregards the fact that Francis, as the driver with the right-of-way, was entitled to anticipate that the plaintiff would yield. Thus, Francis's response time should not be measured from the moment he observed the plaintiff's vehicle. Furthermore, as we have pointed out, it has been recognized in circumstances similar to those at bar that a driver who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for the failure to avoid the collision. Finally, while we realize that the testimony of the two drivers diverged on issues such as the weather conditions at the time of the accident, whether 159th Street was a one- or two-way street, and whether another vehicle preceded Francis's vehicle into the intersection, these disputes are not material to our determination. The plaintiff's failure to yield the right-of-way in ...