- November 9, 2017
Elefterakis, Elefterakis & Panek (Pollack, Pollack, Isaac
& DeCicco, LLP, New York, NY [Brian J. Isaac, Jillian
Rosen, and Brianna Walsh], of counsel), for appellant.
Brisbois Bisgaard & Smith LLP, New York, NY (Meredith
Drucker Nolen and Nicholas Hurzeler of counsel), for
C. BALKIN, J.P. JOHN M. LEVENTHAL CHERYL E. CHAMBERS ROBERT
J. MILLER, JJ.
DECISION & ORDER
action to recover damages for personal injuries, the
plaintiff appeals, as limited by his brief, from so much of
an order of the Supreme Court, Kings County (Velasquez, J.),
dated October 6, 2016, as denied that branch of his motion
which was for summary judgment on the issue of liability.
that the order is affirmed insofar as appealed from, with
18, 2012, at approximately 11:30 a.m., the plaintiff, who was
riding a motorcycle, collided with a vehicle owned by the
defendant Foodliner, Inc., and operated by the defendant
Arthur H. Gavitt. The collision took place at the
intersection of 86th Street and Gatling Place in Brooklyn. At
the time of the accident, the plaintiff was traveling east on
86th Street, and Gavitt was turning left from westbound 86th
Street onto Gatling Place.
plaintiff subsequently commenced this action against the
defendants to recover damages for personal injuries. The
plaintiff moved, inter alia, for summary judgment on the
issue of liability. The Supreme Court denied that branch of
the plaintiffs motion which was for summary judgment on the
issue of liability.
driver of a vehicle intending to turn to the left within an
intersection . . . shall yield the right of way to any
vehicle approaching from the opposite direction which is
within the intersection or so close as to constitute an
immediate hazard" (Vehicle and Traffic Law § 1141).
"The operator of a vehicle with the right-of-way is
entitled to assume that the opposing driver will obey the
traffic laws requiring him or her to yield" (Gause v
Martinez, 91 A.D.3d 595, 596; see Yelder v
Walters, 64 A.D.3d 762, 764). ''Although a
driver with a right-of-way also has a duty to use reasonable
care to avoid a collision, . . . 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" (Yelder v
Walters, 64 A.D.3d at 764 [citations omitted]; see
Fuertes v City of New York, 146 A.D.3d 936, 937;
Bennett v Granata, 118 A.D.3d 652, 653).
the plaintiff demonstrated, prima facie, that Gavitt was
negligent in violating Vehicle and Traffic Law § 1141
"by making a left turn into the path of oncoming traffic
without yielding the right of way to the plaintiff when the
turn could not be made with reasonable safety"
(Sirlin v Schreib, 117 A.D.3d 819, 819; see Hyo
Jin Yoon v Guang Chen, 127 A.D.3d 1023, 1024; Ismail
v Burnbury, 118 A.D.3d 756, 757). The undisputed fact
that Gavitt was, in fact, unable to complete his left turn
"'without being struck by [the plaintiff's]
vehicle'" (Yelder v Walters, 64 A.D.3d at
764, quoting Le Claire v Pratt, 270 A.D.2d 612, 613)
demonstrates that he violated Vehicle and Traffic Law §
1141 by failing to "yield the right of way to any
vehicle approaching from the opposite direction which [was] .
. . so close as to constitute an immediate hazard"
(Vehicle and Traffic Law § 1141; see Hyo Jin Yoon v
Guang Chen, 127 A.D.3d at 1024; Ismail v
Burnbury, 118 A.D.3d at 757; Sirlin v Schreib,
117 A.D.3d at 819; cf. Gause v Martinez, 91 A.D.3d
at 597). "Regardless of which vehicle entered the
intersection first, [the plaintiff], as the driver with the
right-of-way, was entitled to anticipate that [Gavitt] would
obey traffic laws which required [him] to yield"
(Yelder v Walters, 64 A.D.3d at 764).
plaintiff also demonstrated, prima facie, that Gavitt's
negligence was the sole proximate cause of the accident, and
that the plaintiff was not comparatively at fault in the
happening of the accident. In this regard, the plaintiff
testified at his deposition that he was traveling at 25 miles
per hour immediately prior to the accident and, upon seeing
Gavitt commence making the left turn in front of him, he
immediately applied his brakes in an attempt to avoid
colliding with Gavitt's vehicle, but he was unable to
avoid the collision (see Sirlin v Schreib, 117
A.D.3d at 819-820; Ducie v Ippolito, 95 A.D.3d 1067,
1068; Yelder v Walters, 64 A.D.3d at 764).
opposition to the plaintiff's prima facie showing,
however, the defendants raised a triable issue of fact as to
whether the plaintiff was traveling at an excessive rate of
speed immediately prior to the accident and whether he could
have avoided the accident through the exercise of reasonable
care (see Rodriguez v Klein,116 A.D.3d 939, 940;
see also Steiner v Dincesen,95 A.D.3d 877;
Casaregola v Farkouh,1 A.D.3d 306, 307). Since
issues of fact exist as to whether the plaintiff was
comparatively at fault in the happening of the ...