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

Dennis J. POMIETLASZ, Jr., Plaintiff-Appellant, v. Sandra R. SMITH and Dudley Smith, Defendants-Respondents.

    Decided: July 07, 2006

PRESENT:  GORSKI, J.P., MARTOCHE, GREEN, PINE, AND HAYES, JJ.Hogan & Willig, PLLC, Amherst (John B. Licata of Counsel), for Plaintiff-Appellant. Kenney Shelton Liptak Nowak LLP, Buffalo (Tamara M. Harbold of Counsel), for Defendants-Respondents.

 Plaintiff commenced this action seeking damages for injuries he sustained when a vehicle driven by Sandra R. Smith (defendant) made a left turn in front of his motorcycle, which he was driving in the proper lane of travel.   Plaintiff applied his brakes but was unable to avoid the accident.   Supreme Court erred in denying plaintiff's motion seeking partial summary judgment “on the issues of negligence and proximate cause.”  “Although summary judgment is a drastic remedy and there is considerable reluctance to grant it in negligence actions, the motion should be granted when there is no genuine issue to be resolved at trial” (McGraw v. Ranieri, 202 A.D.2d 725, 726, 608 N.Y.S.2d 577).   Here, plaintiff met his burden on the motion by establishing as a matter of law “that the sole proximate cause of the accident was defendant's failure to yield the right of way” to plaintiff, who never observed defendant prior to the collision (Kelsey v. Degan, 266 A.D.2d 843, 843, 697 N.Y.S.2d 426).   In opposition, defendants submitted the deposition testimony of defendant in which she admitted that she did not observe plaintiff's motorcycle prior to the collision, but defendants nevertheless contended that there is an issue of fact whether the “sole proximate cause of the accident was defendant's negligence.”   Defendants failed to submit evidence raising a triable issue of fact whether plaintiff was negligent as well, however, and thus the court erred in denying plaintiff's motion (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 reversed on the law without costs and the motion is granted.


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