SYDNEY RAIT PLAINTIFF APPELLANT v. MATTHEW SHEEHAN AND SMITH NEPHEW INC DEFENDANTS RESPONDENTS

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Supreme Court, Appellate Division, Fourth Department.

SYDNEY H. RAIT, PLAINTIFF–APPELLANT, v. MATTHEW D. SHEEHAN AND SMITH & NEPHEW, INC., DEFENDANTS–RESPONDENTS.

CA 16–00653

Decided: December 23, 2016

PRESENT:  PERADOTTO, J.P., CARNI, CURRAN, TROUTMAN, AND SCUDDER, JJ. LEWIS & LEWIS, P.C., BUFFALO (DAVID M. BLOCK OF COUNSEL), FOR PLAINTIFF–APPELLANT. LAW OFFICES OF JOHN WALLACE, BUFFALO (LEO T. FABRIZI OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.

MEMORANDUM AND ORDER

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

Memorandum:  Plaintiff commenced this action to recover damages for injuries that she allegedly sustained in a motor vehicle accident in the Town of Amherst.  The accident occurred when a vehicle driven by Matthew D. Sheehan (defendant) struck the driver's side of plaintiff's vehicle while plaintiff was attempting to make a left turn from a parking lot onto Sheridan Drive.

We conclude that Supreme Court properly granted defendants' motion for summary judgment dismissing the amended complaint.  Defendants met their initial burden “ ‘by establishing that [defendant] was driving within the speed limit, that he did not have time to avoid the collision, and that plaintiff was entering the roadway from a parking lot’ “ (Johnson v. Time Warner Entertainment, 115 AD3d 1295, 1295;  see generally Vehicle and Traffic Law § 1143), and in response plaintiff failed to raise an issue of fact (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562).  In particular, plaintiff failed to raise an issue of fact whether defendant was traveling in excess of a reasonable speed under the circumstances by her submission of a witness statement that defendant's “speed was at least” that of the posted speed limit (see generally § 1180[a] ).  Contrary to plaintiff's contention, the fact that defendant may have been traveling at such a speed “is inconsequential inasmuch as there is no indication that [he] could have avoided the accident even if [he] had been traveling at a speed ․ below the posted speed limit” (Daniels v. Rumsey, 111 AD3d 1408, 1410;  see Heltz v. Barratt, 115 AD3d 1298, 1299, affd 24 NY3d 1185).

Frances E. Cafarell

Clerk of the Court