WOJESKI v. DELFAVERO (2003)

Contrary to the contention of plaintiff, Supreme Court properly denied her motion for partial summary judgment on the issue of liability.   Plaintiff commenced this action to recover damages for injuries that she sustained in a motor vehicle collision when a vehicle driven by defendant turned left in front of her vehicle at an intersection.   We conclude that there is an issue of fact whether excessive speed on the part of plaintiff contributed to the accident. Plaintiff testified at her deposition that she did not see defendant's vehicle in sufficient time to avoid the collision, and the affidavit of an eyewitness submitted by defendant in opposition to the motion permits the conclusion that the inability of plaintiff to avoid the collision may have resulted from the high rate of speed of her vehicle (see Weng v. Gill, 52 A.D.2d 923, 383 N.Y.S.2d 84, affd. 42 N.Y.2d 927, 397 N.Y.S.2d 1007, 366 N.E.2d 1361;  Shpritzman v. Strong, 248 A.D.2d 524, 670 N.Y.S.2d 50;  Patti v. Fenimore, 181 A.D.2d 869, 871, 581 N.Y.S.2d 432;  cf.  Barile v. Carroll, 280 A.D.2d 988, 720 N.Y.S.2d 674).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: