DEROSIER v. Bendary A. Eltaiar, defendant-appellant. (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, and the defendant Bendary A. Eltaiar separately appeals, from an order of the Supreme Court, Kings County (Richard J. Montelione, J.), dated June 9, 2023.  The order, insofar as appealed from by the plaintiff, granted that branch of the motion of the defendants James Chillemi and Angela Julia Grazia Chillemi which was for summary judgment dismissing the complaint insofar as asserted against them.  The order, insofar as appealed from by the defendant Bendary A. Eltaiar, granted the motion of the defendants James Chillemi and Angela Julia Grazia Chillemi for summary judgment dismissing the complaint and all cross-claims insofar as asserted against them.

ORDERED that the appeal by the defendant Bendary A. Eltaiar from so much of the order as granted that branch of the motion of the defendants James Chillemi and Angela Julia Grazia Chillemi which was for summary judgment dismissing the complaint insofar as asserted against them is dismissed, as the defendant Bendary A. Eltaiar is not aggrieved by that portion of the order (see CPLR 5511;  Mixon v. TBV, Inc., 76 A.D.3d 144, 904 N.Y.S.2d 132);  and it is further,

ORDERED that the order is affirmed;  and it is further,

ORDERED that one bill of costs is awarded to the defendants James Chillemi and Angela Julia Grazia Chillemi.

In May 2017, the plaintiff allegedly was injured when the taxicab in which he was a passenger, owned and operated by the defendant Bendary A. Eltaiar, collided with a vehicle owned by the defendant James Chillemi and operated by the defendant Angela Julia Grazia Chillemi at an intersection in Brooklyn.  The accident allegedly occurred when Eltaiar attempted to make a left turn across Angela's lane of travel.

In November 2017, the plaintiff commenced this action to recover damages for personal injuries.  James and Angela (hereinafter together the Chillemi defendants) thereafter moved for summary judgment dismissing the complaint and all cross-claims insofar as asserted against them, arguing, inter alia, that Eltaiar's alleged violation of Vehicle and Traffic Law § 1141 was the sole proximate cause of the accident.  In an order dated June 9, 2023, the Supreme Court granted the Chillemi defendants’ motion.  The plaintiff appeals, and Eltaiar separately appeals.

“ ‘A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident’ ” (Shuofang Yang v. Sanacore, 202 A.D.3d 1120, 1121, 163 N.Y.S.3d 605, quoting Boulos v. Lerner–Harrington, 124 A.D.3d 709, 709, 2 N.Y.S.3d 526;  see Enriquez v. Joseph, 169 A.D.3d 1008, 1008–1009, 94 N.Y.S.3d 599).  “A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law” (Vainer v. DiSalvo, 79 A.D.3d 1023, 1024, 914 N.Y.S.2d 236).  Pursuant to Vehicle and Traffic Law § 1141, “[t]he driver of a vehicle intending to turn to the left within an intersection ․ shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard” (Brodney v. Picinic, 172 A.D.3d 673, 674, 99 N.Y.S.3d 399 [internal quotation marks omitted];  see Ming–Fai Jon v. Wager, 165 A.D.3d 1253, 1253–1254, 87 N.Y.S.3d 82).  “The operator of an oncoming vehicle with the right-of-way is entitled to assume that the opposing operator will yield in compliance with the Vehicle and Traffic Law” (Attl v. Spetler, 137 A.D.3d 1176, 1176, 28 N.Y.S.3d 699;  see Shashaty v. Gavitt, 158 A.D.3d 830, 831, 71 N.Y.S.3d 560).  “ ‘Although a driver with a right-of-way also has a duty to use reasonable care to avoid a collision, ․ a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision’ ” (Kishun v. Roman, 221 A.D.3d 795, 796, 198 N.Y.S.3d 209 [internal quotation marks omitted], quoting Choo v. Virginia Transp. Corp., 204 A.D.3d 743, 744, 164 N.Y.S.3d 473;  see Shashaty v. Gavitt, 158 A.D.3d at 831, 71 N.Y.S.3d 560;  Yelder v. Walters, 64 A.D.3d 762, 764, 883 N.Y.S.2d 290).

Here, the Chillemi defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint and all cross-claims insofar as asserted against them by demonstrating that Eltaiar was negligent by making a left turn when it was not reasonably safe to do so, directly into the path of the Chillemi defendants’ oncoming vehicle, in violation of Vehicle and Traffic Law § 1141 (see Kishun v. Roman, 221 A.D.3d at 796, 198 N.Y.S.3d 209).  The Chillemi defendants also established, prima facie, that Angela was not at fault in the happening of the accident by demonstrating that Angela was stopped at the intersection while the light was red, that she waited for the light to turn green, and that she proceeded into the intersection at approximately five miles per hour (see id.).  In opposition, the plaintiff and Eltaiar failed to raise a triable issue of fact (see Bunch v. Gwood, 202 A.D.3d 1036, 1038, 160 N.Y.S.3d 666;  Giwa v. Bloom, 154 A.D.3d 921, 922–923, 62 N.Y.S.3d 527).

Accordingly, the Supreme Court property granted the Chillemi defendants’ motion for summary judgment dismissing the complaint and all cross-claims insofar as asserted against them.

CONNOLLY, J.P., FORD, VOUTSINAS and VENTURA, JJ., concur.