Ronald Kutkiewicz, et al., appellants, v. Kevin R. Horton, Jr., respondent. (2011)

Submitted—March 28, 2011

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated March 26, 2010, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

On October 11, 2007, the injured plaintiff, Ronald Kutkiewicz (hereinafter Kutkiewicz) was operating his vehicle eastbound on the South Service Road of Sunrise Highway in the Town of Brookhaven when he turned northeast to enter Sunrise Highway by an access ramp.   The defendant, Kevin R. Horton, Jr., was operating his vehicle westbound on the South Service Road, and the two vehicles collided, allegedly causing injuries to both Kutkiewicz and Horton.   Kutkiewicz and his wife, suing derivatively, commenced an action against Horton.   After discovery, Horton moved for summary judgment dismissing the complaint.   In support of his motion, Horton submitted his own deposition testimony as well as Kutkiewicz's deposition testimony.   The Supreme Court granted Horton's motion, and the plaintiffs appeal.   We affirm.

When viewed in the light most favorable to the nonmoving parties, here the plaintiffs (see Stukas v. Streiter, AD3d, 2011 N.Y. Slip Op 01832 [2d Dept 2011] ), the evidence Horton submitted in support of the motion established prima facie that the sole proximate cause of the accident was Kutkiewicz's failure to yield the right of way to Horton's vehicle (see Yelder v. Walters, 64 AD3d 762, 763–764;  Vainer v. DiSalvo, 79 AD3d 1023, 1024).   In opposition, the plaintiffs failed to demonstrate a triable issue of fact as to whether Horton was at fault in the happening of the accident (see Yelder v. Walters, 64 AD3d at 764;  Vainer v. DiSalvo, 79 AD3d at 1024).   Consequently, the Supreme Court properly granted Horton's motion for summary judgment dismissing the complaint.

ANGIOLILLO, J.P., BALKIN, LEVENTHAL and SGROI, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court