CARDINAL v. HOKE

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

Matthew R. CARDINAL, Plaintiff-Respondent, v. John J. HOKE and R.B. Humphreys, Inc., Defendants-Appellants.

Decided: March 17, 2006

PRESENT:  HURLBUTT, J.P., GORSKI, GREEN, PINE, AND HAYES, JJ. Getnick Livingston Atkinson Gigliotti & Priore, LLP, Utica (Mark P. Malak of Counsel), for Defendants-Appellants. Brindisi, Murad & Brindisi-Pearlman, LLP, Utica (Anthony J. Brindisi of Counsel), for Plaintiff-Respondent.

Supreme Court properly denied defendants' motion for summary judgment dismissing the complaint in this action arising from an accident that occurred when the vehicle driven by plaintiff collided with a tractor-trailer operated by defendant John J. Hoke and owned by defendant R.B. Humphreys, Inc.   Hoke testified at his deposition that the collision occurred as he was making a left-hand turn at an intersection and that the arrow authorizing him to make the left-hand turn was green.   Plaintiff, however, testified at his deposition that he was traveling in the opposite direction and that he accelerated toward the intersection when his traffic light turned green, whereupon he observed the tractor-trailer attempting to cross the intersection.   According to plaintiff, his vehicle was only approximately 6 to 10 feet from the tractor-trailer when he observed the tractor-trailer attempting to make the turn across the intersection.   A witness who was a passenger in a vehicle traveling in the same direction in which plaintiff was traveling testified that, when she observed plaintiff's traffic light turn green, she observed the driver of the tractor-trailer attempt to make the turn across the intersection.   Based on the record before us, we conclude that there are issues of fact precluding summary judgment, particularly with respect to which driver had the right-of-way at the intersection (see Cameron v. Steel, 24 A.D.3d 1206, 807 N.Y.S.2d 234;  see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

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

MEMORANDUM: