Calendar Date: June 8, 2017
London, Decatur, Georgia, appellant pro se.
McCabe, Collins, McGeough, Fowler, Levine & Nogan, LLP,
Carle Place (Mark P. Donohue of counsel), for respondents.
Before: Garry, J.P., Egan Jr., Lynch, Mulvey and Aarons, JJ.
MEMORANDUM AND ORDER
from an order of the Supreme Court (Cahill, J.), entered July
31, 2015 in Sullivan County, which, among other things,
granted defendants' motion for summary judgment
dismissing the complaint.
commenced this negligence action stemming from a January 2012
motor vehicle accident in the City of Kingston, Ulster County
involving a vehicle driven by defendant Jacklyn D. North and
insured by defendant New South Insurance Company. Plaintiff
was driving westbound on Broadway and, after making a left
turn onto Franklin Street, which intersected with Broadway,
he collided with the vehicle driven by North, who was
traveling eastbound on Broadway. Following joinder of issue,
defendants moved for summary judgment dismissing the
granted defendants' motion and plaintiff appeals.
that defendants' own submissions disclose a triable issue
of fact as to whether North was comparatively negligent. As
part of their moving papers, defendants submitted, among
other things, the pleadings, the deposition transcripts of
plaintiff and Brendan Blagbrough, a nonparty witness to the
accident, and the police accident report. Blagbrough was
driving behind North on Broadway in an easterly direction.
According to Blagbrough, as North approached the intersection
of Broadway and Franklin Street, plaintiff made a swift and
abrupt left turn from the opposite direction and struck
North's vehicle. Blagbrough testified that "[l]ess
than one second" had passed between when he saw
plaintiff turn and the ensuing collision with North. The
police accident report likewise indicated that plaintiff,
when making the left turn onto Franklin Street, failed to
yield the right-of-way to oncoming traffic. Defendants also
submitted the certificate of disposition indicating that
plaintiff was convicted of violating Vehicle and Traffic Law
§ 1141 . The foregoing evidence demonstrates
that plaintiff was negligent per se and that North acted
reasonably under the circumstances presented (see
Cancellaro v Shults, 68 A.D.3d 1234, 1237 , lv
denied 14 N.Y.3d 706');">14 N.Y.3d 706 ; Burnell v Huneau,
1 A.D.3d 758, 760-761 ).
however, provided a contrasting version of the accident. At
his deposition, plaintiff testified that he was driving
westbound on Broadway when he turned left into the
intersection of Broadway and Franklin Street. Plaintiff
crossed into the easterly direction of Broadway at the
intersection and stopped to allow a woman in front of him to
cross the street. Plaintiff stated that when he stopped,
"it was clear" on Broadway and that North's
vehicle was stopped at a traffic light "maybe about 200
feet away, maybe 300 feet away from Franklin Street."
While plaintiff was still stopped, the passenger in his car
told him that North's vehicle was "coming
fast." According to plaintiff, there was no traffic or
other cars in front of North and that North could just
"go around [him]." Plaintiff testified that just as
he was about to exit the intersection, North's vehicle
struck the passenger side of his vehicle.
light of the conflicting accounts as to how the accident
occurred, we conclude that Supreme Court erred in granting
summary judgment in favor of North (see Quinones v
Community Action Commn. to Help the Economy, Inc., 46
A.D.3d 1326, 1326-1327 ). Furthermore, although
plaintiff failed to yield the right-of-way and was convicted
of violating Vehicle and Traffic Law § 1141, such
finding "does not preclude the existence of a fact issue
as to [North's] comparative fault" (Lopez-Viola
v Duell, 100 A.D.3d 1239, 1241-1242 ). Given
plaintiff's testimony regarding North's distance from
the subject intersection, the absence of other cars in front
of North as she approached plaintiff and the evidence that
North was "coming fast, " a question of fact exists
regarding North's comparative fault and whether she could
have used reasonable care to avoid the collision (see
Gobin v Delgado, 142 A.D.3d 1134, 1135-1136 ;
Lopez-Viola v Duell, 100 A.D.3d at 1241-1242;
Cahoon v Frechette, 86 A.D.3d 774, 776-777 ).
Accordingly, viewing the evidence in a light most favorable
to plaintiff, summary judgment in favor of North on the issue
of liability should have been denied.
J.P., Egan Jr., Lynch and Mulvey, JJ., concur.
that the order is modified, on the law, without costs, by
reversing so much thereof as granted defendants' motion
for summary judgment dismissing the complaint against
defendant Jacklyn D. ...