CAPARITIA v. JOHNSON (2023)

Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered on or about March 23, 2022, which, to the extent appealed from, granted plaintiff's motion for summary judgment dismissing the affirmative defense of comparative fault, unanimously reversed, on the law, and the motion denied, without costs.

Although plaintiff demonstrated entitlement to partial summary judgment on the issue of liability, plaintiff's evidence, which included dashcam footage from her ambulance, did not eliminate issues of fact as to her own comparative negligence.  Generally, a driver with the right-of-way is entitled to anticipate that a motorist will obey traffic laws that require them to yield (Jordan v. City of New York, 12 A.D.3d 326, 937, 784 N.Y.S.2d 861 [1st Dept. 2004]), and is not comparatively at fault if they have only seconds to react to a vehicle that has failed to yield (Fuertes v. City of New York, 146 A.D.3d 936, 45 N.Y.S.3d 562 [2d Dept. 2017]).  However, the driver traveling with the right-of-way may be found to have contributed to the accident if they do not use reasonable care to avoid the accident (Desio v. Cerebral Palsy Transp., Inc., 121 A.D.3d 1033, 1034–1035, 994 N.Y.S.2d 681 [2d Dept. 2014]).  The record here presents issues of fact as to the reasonableness of plaintiff's response to the situation presented by the tractor trailer turning right from the left lane in front of her.  While plaintiff testified that she braked as soon as she saw the tractor trailer start to turn, a jury viewing the dashcam video could conclude that she had more than only seconds to react and could have used reasonable care to avoid the accident.