ELTOSAM v. DARLING INGREDIENTS INC (2025)

Order, Supreme Court, Bronx County (Bianka Perez, J.), entered on or about February 15, 2024, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The evidence, including plaintiff's testimony, shows that plaintiff's vehicle was stopped while partially merged from the service road onto the main traffic lane when defendants’ truck hit the driver's side of his car.  Thus, plaintiff's car was not entirely within a single lane and proceeded to merge before it was safe to do so in violation of Vehicle and Traffic Law § 1128(a), which constitutes negligence per se (see Davis v. Turner, 132 A.D.3d 603, 603, 20 N.Y.S.3d 2 [1st Dept. 2015]).

Plaintiff was required to stop and await a break in traffic before merging completely rather than attempt to merge partially and stop between lanes before completing the merger (see Castro v. Hatim, 174 A.D.3d 464, 467, 106 N.Y.S.3d 24 [1st Dept. 2019]).  Because defendant driver had the right of way, he was entitled to assume that plaintiff would obey the traffic laws and not merge until it was safe to do so (see Paulino v. Guzman, 85 A.D.3d 631, 632, 925 N.Y.S.2d 503 [1st Dept. 2011]).  That plaintiff maintains he was stopped for between 5 to 15 seconds before impact does not affect the above analysis, as a driver with the right of way who has only seconds to react to a failure to yield is not comparatively at fault (see Caparitia v. Johnson, 216 A.D.3d 529, 189 N.Y.S.3d 188 [1st Dept. 2023];  Castro v. Hatim, 174 A.D.3d at 467, 106 N.Y.S.3d 24).

We have considered plaintiff's remaining contentions and find them unavailing.