ROHN v. Richard C. Varela, et al., Defendants-Respondents. (2018)

DECISION & ORDER

ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs to the defendants Jehan M. Aly, Khaled Elgohsry, and Carey International, Inc., payable by the plaintiffs, the motion of the defendants Jehan M. Aly, Khaled Elgohsry, and Carey International, Inc., for summary judgment dismissing the complaint and all cross claims insofar as asserted against them is granted, and that branch of the plaintiffs' cross motion which was for summary judgment against those defendants determining that the plaintiffs were not comparatively negligent in the happening of the accident is denied as academic.

The plaintiffs, Lee Rohn and Ryan Greene, were passengers in a for-hire vehicle that was driven by the defendant Jehan M. Aly, owned by the defendant Khaled Elgohsry, and contracted through the defendant Carey International, Inc. (hereinafter the Aly vehicle).  The plaintiffs allegedly sustained personal injuries when the Aly vehicle collided with a vehicle operated by the defendant Richard C. Varela (hereinafter the Varela vehicle) at the intersection of Northern Boulevard and Steinway Street in Queens.  At the time of the collision, the Varela vehicle was in the intersection making a left turn from Northern Boulevard onto Steinway Street, and the Aly vehicle was proceeding through the intersection from the opposite direction on Northern Boulevard.

The plaintiffs commenced this personal injury action against Aly, Elgohsry, and Carey International, Inc. (hereinafter collectively the moving defendants), as well as Varela and the owner of the Varela vehicle (hereinafter together the Varela defendants).  The moving defendants interposed an answer which included, inter alia, an affirmative defense alleging that the plaintiffs were comparatively negligent.  Following discovery, the moving defendants moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.  The plaintiffs opposed the motion and cross-moved, inter alia, for summary judgment against the moving defendants determining that the plaintiffs were not comparatively negligent in the happening of the accident.  The Supreme Court, among other things, denied the moving defendants' motion, and granted that branch of the plaintiffs' cross motion which was for summary judgment against the moving defendants determining that the plaintiffs were not comparatively negligent in the happening of the accident.  The moving defendants appeal.

The moving 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 submitting, among other things, the deposition transcripts of the parties, as well as video surveillance footage of the accident, which demonstrated that the sole proximate cause of the accident was Varela's violation of Vehicle and Traffic Law § 1141 in making a left turn into the path of the oncoming Aly vehicle without yielding the right-of-way (see Foley v. Santucci, 135 A.D.3d 813, 813–814, 23 N.Y.S.3d 338;  Mazzullo v. Loots, 116 A.D.3d 677, 678, 983 N.Y.S.2d 287;  Krajniak v. Jin Y. Trading, Inc., 114 A.D.3d 910, 980 N.Y.S.2d 812;  Ducie v. Ippolito, 95 A.D.3d 1067, 1067, 944 N.Y.S.2d 275;  Loch v. Garber, 69 A.D.3d 814, 815, 893 N.Y.S.2d 233).  As the driver with the right-of-way, Aly was entitled to anticipate that Varela would obey the traffic laws which required him to yield (see Foley v. Santucci, 135 A.D.3d at 814, 23 N.Y.S.3d 338;  Kann v. Maggies Paratransit Corp., 63 A.D.3d 792, 793, 882 N.Y.S.2d 129).  “ ‘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’ ” (Ducie v. Ippolito, 95 A.D.3d at 1067–1068, 944 N.Y.S.2d 275, quoting Yelder v. Walters, 64 A.D.3d 762, 764, 883 N.Y.S.2d 290;  see Foley v. Santucci, 135 A.D.3d at 814, 23 N.Y.S.3d 338).  Here, the moving defendants established that Aly had only seconds to react to the Varela vehicle, which failed to yield.

In opposition, the plaintiffs and the Varela defendants failed to raise a triable issue of fact as to whether any negligence on the part of Aly was a substantial factor in the happening of the accident.  Under the circumstances, the plaintiffs' respective deposition testimony that Aly was speeding is “inconsequential inasmuch as the [plaintiffs] did not raise a triable issue as to whether [Aly] could have avoided the accident even if she had been traveling at or below the posted speed limit” (Foley v. Santucci, 135 A.D.3d at 814, 23 N.Y.S.3d 338;  see Heltz v. Barratt, 115 A.D.3d 1298, 1299, 983 N.Y.S.2d 160, affd 24 N.Y.3d 1185, 3 N.Y.S.3d 757, 27 N.E.3d 471;  Daniels v. Rumsey, 111 A.D.3d 1408, 1410, 975 N.Y.S.2d 303).

In light of the foregoing, we need not reach the moving defendants' remaining contentions.

Accordingly, the Supreme Court should have granted the moving defendants' motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them, and denied, as academic, that branch of the plaintiffs' cross motion which was for summary judgment against the moving defendants determining that the plaintiffs were not comparatively negligent in the happening of the accident.

BALKIN, J.P., SGROI, LASALLE and BARROS, JJ., concur.