BOUS v. FAHEY (1998)

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Nassau County (Feuerstein, J.), dated May 27, 1997, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

At the parties' depositions, there was uncontradicted testimony that the accident occurred when a motor vehicle operated by the plaintiff Damian B. Bous collided with one owned by the defendant Kathleen A. Fahey and operated by the defendant Thomas J. Rodrigues, as the Bous vehicle was making a right turn from Hanse Avenue into the parking lot of his place of employment.   Bous testified that he did not see the vehicle operated by Rodrigues prior to the moment of impact.   Rodrigues testified, without contradiction, that at the time of the occurrence, he was attempting to exit the parking lot and had stopped in the middle of the driveway approximately two feet from Hanse Avenue in order to survey traffic on that thoroughfare.

The fact that Rodrigues positioned his motor vehicle in the middle of the driveway does not raise a triable issue of fact as to whether the accident was caused by negligence on his part.   To the contrary, the sole proximate cause of the accident was Bous's act of turning into the driveway at a time when the movement could not be made with reasonable safety, in violation of Vehicle and Traffic Law § 1163.

MEMORANDUM BY THE COURT.