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Tiefenthaler v. Islam

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


October 27, 2009

TRACY TIEFENTHALER, PLAINTIFF-APPELLANT,
v.
MOHAMMED ISLAM, ET AL., DEFENDANTS-RESPONDENTS.

Order, Supreme Court, New York County (Paul Wooten, J.), entered November 28, 2008, which granted defendants' motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment on the issue of liability, unanimously affirmed, without costs.

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.

Mazzarelli, J.P., Andrias, Moskowitz, Renwick, Richter, JJ.

100543/07

Defendant driver's testimony was uncontroverted that he proceeded into the intersection when the traffic light turned green and a few seconds later his taxi was struck on the left side by a vehicle that had entered the intersection against a red light and that he did not see until the moment of the collision. Plaintiff maintains that, contrary to the motion court's finding, she did not concede that the taxi's light was green. However, she presented no evidence that the light was not green. Indeed, she testified that she did not see the light at all because she was looking at her cell phone. Thus, contrary to plaintiff's contention, defendant, who had the right of way, was entitled to anticipate that other vehicles would stop at the red lights against them, and he had no duty to watch for and avoid one that failed to do so (see Dinham v Wagner, 48 AD3d 349 [2008]). Moreover, plaintiff's contention that defendant could or would have seen the other vehicle had he looked to his left before entering the intersection is purely speculative. Nor does the fact that the taxi was in the extreme right lane when the collision occurred raise an issue of fact as to defendant's attentiveness.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20091027

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