GARNSEY v. BUJANOWSKI (2004)

Appeal from an order of the Supreme Court (Sise, J.), entered August 28, 2003 in Warren County, which granted defendant's motion for summary judgment dismissing the complaint.

Plaintiff's husband drove his all-terrain, off-road vehicle onto a public highway and struck defendant's automobile.   Tragically, he sustained fatal injuries.   Following joinder of issue and depositions, defendant moved for summary judgment.   Supreme Court granted the motion and plaintiff appeals.

We affirm.   Defendant presented evidence that he was driving his car safely within the speed limit and with clear visibility when decedent unexpectedly and rapidly pulled from a dirt driveway onto the street.   He also testified that, despite having slowed, braked and swerved, he was unable to avoid the collision.   This evidence, together with decedent's undisputed failure to yield the right-of-way, was sufficient to meet defendant's initial burden to show that decedent's negligence was the sole proximate cause of the accident (see Moore v. Bremer, 280 A.D.2d 729, 730, 720 N.Y.S.2d 270 [2001];  Matt v. Tricil [N.Y.], 260 A.D.2d 811, 812, 687 N.Y.S.2d 828 [1999] ).

In response, plaintiff failed to raise a triable issue of fact as to whether defendant was also negligent in causing the accident or failing to avoid it (see Colaruotolo v. Crowley, 290 A.D.2d 863, 864, 736 N.Y.S.2d 525 [2002];  Peschieri v. Estate of Ballweber, 285 A.D.2d 921, 923, 727 N.Y.S.2d 811 [2001] ).   Other than citing immaterial inconsistencies in defendant's past statements, plaintiff points to the statement of the only eyewitness that before decedent entered the street, he had been traveling along the side of the pavement parallel to the road, rather than stopped in the driveway as defendant alleges.   Regardless of decedent's off-road position, defendant was entitled, as the one with the right-of-way, to anticipate that decedent would obey the traffic laws and not drive onto the pavement and into his lane (see O'Hara v. Tonner, 288 A.D.2d 513, 514-515, 732 N.Y.S.2d 147 [2001];  Lucksinger v. M.T. Unloading Servs., 280 A.D.2d 741, 742, 720 N.Y.S.2d 272 [2001] ).

Finally, we cannot agree that Supreme Court's consideration of the summary judgment motion was premature.   It was mere speculation on the part of plaintiff's counsel that further discovery might uncover facts relevant to the happening of the accident (see Scofield v. Trustees of Union Coll. in Town of Schenectady, 267 A.D.2d 651, 652, 699 N.Y.S.2d 570 [1999] ).

ORDERED that the order is affirmed, with costs.

ROSE, J.

SPAIN, J.P., CARPINELLO, MUGGLIN and KANE, JJ., concur.