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Supreme Court, Appellate Division, Fourth Department, New York.

Sean P. COOLEY, as Administrator and C.T.A. of the Estate of Marguerite A. Cooley, deceased, Plaintiff-Respondent, v. Albert J. URBAN, Defendant-Appellant, et al., Defendant.

    Decided: November 21, 2003

PRESENT:  PIGOTT, JR., P.J., GREEN, SCUDDER, GORSKI, and HAYES, JJ.Hagelin & Bischof, LLC, Buffalo (Anthony J. Tantillo of Counsel), for Defendant-Appellant. Law Office of John J. Fromen, Buffalo (Edward J. Markarian of Counsel), for Plaintiff-Respondent.

Supreme Court properly denied the motion of defendant Albert J. Urban seeking summary judgment dismissing the complaint against him.   Plaintiff's decedent was killed in a motor vehicle accident while a front-seat passenger in a vehicle driven by her husband, defendant Raymond J. Cooley (Cooley).   Cooley turned left, crossing over two sets of double yellow lines that formed a turning median, in order to enter a restaurant, and his vehicle was struck by an oncoming vehicle driven by Urban.   The motion of Urban for summary judgment was predicated upon his contention that Cooley's negligence was the sole proximate cause of the accident.

It is well established that there can be more than one proximate cause of an accident.   Here, the fact that Cooley made a left-hand turn in front of Urban's vehicle is not dispositive of the issue whether Urban failed to exercise reasonable care in proceeding toward the area where the accident occurred without slowing, despite seeing the Cooley vehicle exit its lane of travel and traverse the entire median before turning into Urban's lane of traffic (see Deshaies v. Prudential Rochester Realty, 302 A.D.2d 999, 1000, 755 N.Y.S.2d 155;  Woolley v. Coppola, 179 A.D.2d 991, 992, 578 N.Y.S.2d 729).  “To meet his initial burden on the motion, [Urban] had to establish both that [Cooley's] vehicle ‘suddenly entered the lane where [Urban] was operating [his vehicle] in a lawful and prudent manner and that there was nothing [Urban] could have done to avoid the collision’ ” (Fratangelo v. Benson, 294 A.D.2d 880, 881, 741 N.Y.S.2d 798).   Although we recognize that Urban was entitled to anticipate that the other driver would obey the traffic laws that required him to yield the right-of-way to Urban (see Galvin v. Zacholl, 302 A.D.2d 965, 966, 755 N.Y.S.2d 175, lv. denied 100 N.Y.2d 512, 767 N.Y.S.2d 393, 799 N.E.2d 616 [Sept. 18, 2003]), in this case, we cannot conclude as a matter of law that Urban was not comparatively negligent (see Boston v. Dunham, 274 A.D.2d 708, 710, 711 N.Y.S.2d 54).   Urban's own deposition testimony, submitted in support of the motion, raises an issue of fact whether Urban was negligent in failing to reduce his rate of speed or take some evasive action in an effort to avoid the accident (see King v. Washburn, 273 A.D.2d 725, 726, 710 N.Y.S.2d 185).

We respectfully dissent.   In our view, defendant Albert J. Urban established his entitlement to judgment as a matter of law and plaintiff failed to raise an issue of fact whether Urban was negligent.   In support of the motion, Urban submitted his deposition testimony.   Urban testified that he was traveling northbound on Harlem Road in the Town of West Seneca at approximately 30 to 35 miles per hour when a vehicle traveling southbound and being driven by defendant Raymond J. Cooley (Cooley) failed to yield the right-of-way and turned left in front of Urban's vehicle.   We disagree with the majority that Urban's deposition testimony raises an issue of fact whether Urban was negligent.   Urban testified unequivocally that he first observed Cooley's vehicle when it moved into a median area that was six to seven feet wide, at which time the two vehicles were approximately two to three car lengths apart.   Immediately thereafter, and without warning, the Cooley vehicle made a left turn directly into the path of Urban's vehicle.   Urban attempted to apply his brakes and turn his steering wheel to the right, but he was unable to avoid colliding with the Cooley vehicle.   That testimony established that Urban could not reasonably have avoided the accident and that it was Cooley who “was negligent in failing to see that which, under the circumstances, he should have seen, and in crossing in front of the defendant['s] vehicle when it was hazardous to do so” (Stiles v. County of Dutchess, 278 A.D.2d 304, 305, 717 N.Y.S.2d 325;  see Galvin v. Zacholl, 302 A.D.2d 965, 966, 755 N.Y.S.2d 175, lv. denied 100 N.Y.2d 512, 767 N.Y.S.2d 393, 799 N.E.2d 616 [Sept. 18, 2003];  Zadins v. Pommerville, 300 A.D.2d 1111, 1112, 751 N.Y.S.2d 803;  Barile v. Carroll, 280 A.D.2d 988, 988-989, 720 N.Y.S.2d 674).   The facts here are strikingly similar to those in Galvin, in which we concluded that defendant was entitled to summary judgment dismissing the complaint where plaintiff crossed in front of defendant's vehicle, despite the fact that defendant observed plaintiff's vehicle with the left turn signal activated prior to the accident.   We determined that, under the circumstances, defendant “was entitled to anticipate that plaintiff would obey the traffic laws that required her to yield the right-of-way to defendant” (Galvin, 302 A.D.2d at 966, 755 N.Y.S.2d 175).   In our view, the majority disregards that well-established rule of law here.   We would therefore reverse the order denying the motion of Urban seeking summary judgment and dismiss the complaint against him.

It is hereby ORDERED that the order so appealed from be and the same hereby is affirmed without costs.


All concur except SCUDDER and HAYES, JJ., who dissent and vote to reverse in accordance with the following Memorandum:

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