APONTE v. S.A. Chowdhury, Defendant-Respondent. (2024)

Order, Supreme Court, New York County (James G. Clynes, J.), entered on or about September 22, 2023, which granted defendant S.A. Chowdhury's motion for summary judgment dismissing the complaint and all cross-claims as against him, unanimously affirmed, without costs.

Chowdhury established his prima facie entitlement to summary judgment by submitting the dashcam video of the impact.  The video footage, which plaintiff concedes is an accurate depiction of the accident, demonstrates that the vehicle in which she was a passenger was traveling at a slow speed in the leftmost lane, marked as left turn only, when a limousine made a sudden left turn from the right lane and struck it, violating Vehicle and Traffic Law § 1128(a), § 1160, and § 1163(a) (see Thompson v. Pizzaro, 155 A.D.3d 423, 62 N.Y.S.3d 807 [1st Dept. 2017]).

In opposition, plaintiff failed to raise a triable issue of fact, and the court properly concluded that her assertion that the nonparty driver negligently failed to evade the impact was speculative (see Hidalgo v. Vasquez, 187 A.D.3d 683, 684, 131 N.Y.S.3d 556 [1st Dept. 2020]).  Plaintiff does not dispute how the accident occurred, and the only argument she raises in opposition is that the driver had a duty to take evasive action to avoid the impact and that his failure to do so contributed to her injuries.  Although under some limited circumstances a party who has time to act may have a duty to take evasive actions to avoid an accident, this duty does not arise when the driver only has a few seconds to react to another driver's violation of traffic laws (see Calderon v. Calise, 214 A.D.3d 446, 446–447, 183 N.Y.S.3d 733 [1st Dept. 2023];  Rooney v. Madison, 134 A.D.3d 634, 634–635, 24 N.Y.S.3d 9 [1st Dept. 2015], lv denied 27 N.Y.3d 911, 2016 WL 3553579 [2016]).  There is no evidence that the driver, who had the right-of-way, had the time to react to the limousine coming into his lane or that he was at fault in the happening of the accident because, as the video demonstrates and the parties agree, he had at most two seconds between the limousine entering his lane and the impact.  The fact that plaintiff might have observed the limousine in the right lane at some point prior to the accident is of no consequence (see Mitchell v. Smith, 142 A.D.3d 861, 862, 37 N.Y.S.3d 541 [1st Dept. 2016]).