ROSENBERG v. KOTSEK (2007)

In an action to recover damages for personal injuries, the defendants appeal from so much of an order of the Supreme Court, Kings County (Vaughan, J.), dated November 29, 2006, as denied that branch of their motion which was for summary judgment dismissing the complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the defendants' motion for summary judgment is granted.

The plaintiff commenced this action to recover damages for personal injuries arising from a motor vehicle accident during which the front of his bicycle came into contact with the driver's side of the defendants' automobile at an intersection.

 In support of that branch of their motion which was for summary judgment dismissing the complaint, the defendants established their prima facie entitlement to summary judgment by tendering evidence demonstrating that the plaintiff was negligent as a matter of law in failing to yield the right of way at the intersection (see Vehicle and Traffic Law § 1140;  Odumbo v. Perera, 27 A.D.3d 709, 813 N.Y.S.2d 462;  Willis v. Fink, 7 A.D.3d 519, 520, 775 N.Y.S.2d 587) and in failing to see the automobile which by proper use of his senses he should have seen (see Breslin v. Rudden, 291 A.D.2d 471, 738 N.Y.S.2d 674;  Botero v. Erraez, 289 A.D.2d 274, 734 N.Y.S.2d 565).   Moreover, the defendant Vladimir Kotsek, who had the right of way, was entitled to anticipate that the plaintiff would obey traffic laws requiring him to yield (see Rossani v. Rana, 8 A.D.3d 548, 779 N.Y.S.2d 211;  Lupowitz v. Fogarty, 295 A.D.2d 576, 744 N.Y.S.2d 480).

In opposition, the plaintiff's affidavit was insufficient to raise a triable issue of fact because it contradicted his earlier deposition testimony and was clearly designed to avoid the consequences of his earlier admissions (see Mestric v. Martinez Cleaning Co., 306 A.D.2d 449, 761 N.Y.S.2d 504;  Hartman v. Mountain Val. Brew Pub., 301 A.D.2d 570, 754 N.Y.S.2d 31).   Accordingly, the Supreme Court erred in denying that branch of the defendants' motion which was for summary judgment dismissing the complaint.