MATTHEWS v. SMALLRIDGE KSPM (2009)

Plaintiff commenced this action seeking damages for injuries she sustained when the vehicle she was driving collided at an intersection with a vehicle owned by defendant KSPM Vending and operated by Kevin T. Smallridge (Smallridge vehicle).   Plaintiff was traveling eastbound as she attempted to make a left turn, whereupon her vehicle was struck by the westbound Smallridge vehicle.   The sole issue on appeal is whether Supreme Court properly granted defendants' motion for summary judgment dismissing the complaint.   We conclude that the court erred, inasmuch as defendants failed to meet their initial burden of establishing their entitlement to judgment as a matter of law (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Indeed, defendants raised a triable issue of fact concerning the negligence of Smallridge, and thus the vicarious liability of KSPM Vending, by submitting plaintiff's deposition testimony in support of their motion.   Plaintiff testified therein that Smallridge pulled out from behind a large westbound vehicle that was waiting to turn left and that he then proceeded into the intersection where plaintiff was already located.   Thus, defendants raised an issue of fact whether Smallridge “failed to use reasonable care when proceeding into the intersection” (Halbina v. Brege, 41 A.D.3d 1218, 1219, 838 N.Y.S.2d 288;  see Fleming v. Graham, 34 A.D.3d 525, 526, 824 N.Y.S.2d 376, revd. on other grounds 10 N.Y.3d 296, 857 N.Y.S.2d 8, 886 N.E.2d 769;  Boston v. Dunham, 274 A.D.2d 708, 710, 711 N.Y.S.2d 54;  Teller v. Anzano, 263 A.D.2d 647, 647-648, 694 N.Y.S.2d 780).

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied and the complaint is reinstated.

MEMORANDUM: