ROGERS v. EDELMAN

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

Autumn D. ROGERS and Eugene Rogers, Individually and as Husband and Wife, Plaintiffs–Respondents, v. Janna K. EDELMAN, Defendant–Appellant.

Decided: December 30, 2010

PRESENT:  MARTOCHE, J.P., CENTRA, FAHEY, LINDLEY, AND SCONIERS, JJ. Hagelin Kent LLC, Rochester (John E. Abeel of Counsel), for Defendant–Appellant. Cellino & Barnes, P.C., Rochester (Charles F. Burkwit of Counsel), for Plaintiffs–Respondents. Rupp, Baase, Pfalzgraf, Cunningham & Coppola LLC, Rochester (Matthew A. Lenhard of Counsel), for Plaintiff–Respondent Eugene Rogers, on the Counterclaim.

Plaintiffs commenced this action seeking damages for injuries sustained when the vehicle driven by Eugene Rogers (plaintiff), in which plaintiff Autumn D. Rogers was a passenger, collided with a vehicle driven by defendant.   We conclude that Supreme Court properly granted the motion of plaintiff for summary judgment dismissing the counterclaim against him, as well as the “cross motion” of both plaintiffs for partial summary judgment on the issue of negligence.   It is undisputed that the collision occurred when defendant, who was turning into a driveway, turned left in front of plaintiffs' oncoming vehicle.   Plaintiffs testified at their respective depositions that their vehicle was traveling at or below the speed limit, that they saw defendant's vehicle for some distance before it turned, and that, when defendant's vehicle turned left, there was no opportunity to avoid the accident.   Defendant, on the other hand, testified at her deposition that she never saw plaintiffs' vehicle prior to the collision.

 It is well settled that “[a driver] who has the right of way is entitled to anticipate that other vehicles will obey the traffic laws that require them to yield” (Namisnak v. Martin, 244 A.D.2d 258, 260, 664 N.Y.S.2d 435;  see Wallace v. Kuhn, 23 A.D.3d 1042, 1043, 804 N.Y.S.2d 187;  Doxtader v. Janczuk, 294 A.D.2d 859, 741 N.Y.S.2d 368, lv. denied 99 N.Y.2d 505, 755 N.Y.S.2d 712, 785 N.E.2d 734).  “Plaintiff[s] met [their] initial burden 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[s]” (Guadagno v. Norward, 43 A.D.3d 1432, 1433, 842 N.Y.S.2d 844;  see Kelsey v. Degan, 266 A.D.2d 843, 697 N.Y.S.2d 426;  Galvin v. Zacholl, 302 A.D.2d 965, 967, 755 N.Y.S.2d 175, lv. denied 100 N.Y.2d 512, 767 N.Y.S.2d 393, 799 N.E.2d 616), and defendant 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 defendant's contention, plaintiff established as a matter of law that he “was free from fault in the occurrence of the accident” (Hillman v. Eick, 8 A.D.3d 989, 991, 779 N.Y.S.2d 794).

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

MEMORANDUM: