DORR v. FARNHAM

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

Wayne H. DORR, as Executor of the Estate of Cynthia A. Dorr, Deceased, Plaintiff-Appellant, v. Karen A. FARNHAM, Clifford H. Farnham and County of Jefferson, Defendants-Respondents.

Decided: December 31, 2008

PRESENT:  SCUDDER, P.J., HURLBUTT, FAHEY, PERADOTTO, AND PINE, JJ. Brennan & White, L.L.P., Queensbury (Daniel J. Stewart of Counsel), for Plaintiff-Appellant. MacKenzie Hughes LLP, Syracuse (Louis J. Tripoli of Counsel), for Defendants-Respondents Karen A. Farnham and Clifford H. Farnham. Conboy, McKay, Bachman & Kendall, LLP, Watertown (Stephen W. Gebo of Counsel), for Defendant-Respondent County of Jefferson.

 Plaintiff commenced this action seeking damages for injuries sustained by his wife (decedent) when the vehicle she was driving collided at an intersection with a vehicle operated by Karen A. Farnham and owned by Clifford H. Farnham (collectively, Farnham defendants).   Supreme Court erred in granting the motion of the Farnham defendants for summary judgment dismissing the complaint against them, and we therefore modify the order accordingly.   In support of their motion, those defendants submitted the affidavit of Karen Farnham wherein she stated that the collision occurred when decedent, after stopping at a stop sign, proceeded into Karen Farnham's lane of travel, which was not controlled by any traffic devices.   Karen Farnham further stated that she removed her foot from the accelerator when she saw decedent approach the intersection, but she did not forcibly apply her brakes or engage in any other evasive maneuver until decedent was in her lane of travel.   Although Karen Farnham “was entitled to anticipate that [decedent] would obey the traffic laws that required her to yield the right-of-way to [Karen Farnham]” (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;  see Vehicle and Traffic Law § 1142[a];  Guadagno v. Norward, 43 A.D.3d 1432, 1433, 842 N.Y.S.2d 844), the Farnham defendants failed to establish that Karen Farnham used the requisite “ ‘reasonable care when proceeding into the intersection’ ” (Strasburg v. Campbell, 28 A.D.3d 1131, 1132, 816 N.Y.S.2d 627;  see Halbina v. Brege, 41 A.D.3d 1218, 1219, 838 N.Y.S.2d 288).   They thus failed to meet their initial burden on the motion because they failed to establish that “ ‘the sole proximate cause of the accident was [decedent's] failure to yield the right of way’ ” to Karen Farnham (Guadagno, 43 A.D.3d at 1433, 842 N.Y.S.2d 844).

 We further conclude, however, that the court properly granted the motion of defendant County of Jefferson (County) for summary judgment dismissing the complaint against it inasmuch as the County established its entitlement to judgment as a matter of law, and plaintiff failed to raise a triable issue of fact (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).   Contrary to plaintiff's contention, any issue whether the stop sign or the stop bars provided adequate sight lines for decedent is insufficient to defeat the motion because decedent had a duty to stop “at the point nearest the intersecting roadway where [she] ha[d] a view of the approaching traffic on the intersecting roadway before entering the intersection” (Vehicle and Traffic Law § 1172[a] ).   Furthermore, although the County has a nondelegable duty to maintain its highways “in a reasonably safe condition, which includes the duty to ‘trim growth within the highway's right-of-way to assure visibility of stop signs and other traffic’ ” (Cain v. Pappalardo, 225 A.D.2d 1005, 1006, 639 N.Y.S.2d 570;  see generally Banta v. County of Erie, 134 A.D.2d 839, 521 N.Y.S.2d 589), the submissions of the County in support of its motion establish that it satisfied that duty (cf. Sanchez v. Lippincott, 89 A.D.2d 372, 375, 455 N.Y.S.2d 457).

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying the motion of defendants Karen A. Farnham and Clifford H. Farnham and reinstating the complaint against those defendants and as modified the order is affirmed without costs.

MEMORANDUM: