STANFORD v. DUSHEY

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Anthony P. STANFORD, respondent, v. Linda A. DUSHEY, et al., appellants.

Decided: March 23, 2010

MARK C. DILLON, J.P., RUTH C. BALKIN, THOMAS A. DICKERSON, and PLUMMER E. LOTT, JJ. Eustace & Marquez, White Plains, N.Y. (Diane C. Miceli of counsel), for appellants. Daniel P. Buttafuoco & Associates, PLLC, Woodbury, N.Y. (Ellen Buchholz of counsel), for respondent.

In an action, inter alia, to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Westchester County (Giacomo, J.), entered June 8, 2009, which granted the plaintiff's motion for summary judgment on the issue of liability.

ORDERED that the order is affirmed, with costs.

The plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability by submitting evidence that the defendant driver failed to yield the right-of-way as the plaintiff proceeded lawfully through the intersection (see Vehicle and Traffic Law § 1142[a]; Khan v. Nelson, 68 A.D.3d 1062, 892 N.Y.S.2d 167; Falcone v. Ibarra, 67 A.D.3d 858, 859, 889 N.Y.S.2d 238; Yelder v. Walters, 64 A.D.3d 762, 763-764, 883 N.Y.S.2d 290; Grossman v. Spector, 48 A.D.3d 750, 751, 853 N.Y.S.2d 154). In opposition, the defendants failed to raise a triable issue of fact. Since the defendant driver admitted in her affidavit that she did not see the plaintiff's vehicle prior to the collision, the defendants' contention that the plaintiff may have been speeding or may have been negligent in failing to take evasive action was speculative (see Loch v. Garber, 69 A.D.3d 814, 893 N.Y.S.2d 233; Khan v. Nelson, 68 A.D.3d at 1062, 892 N.Y.S.2d 167; Falcone v. Ibarra, 67 A.D.3d at 859, 889 N.Y.S.2d 238; Yelder v. Walters, 64 A.D.3d at 764, 883 N.Y.S.2d 290; Exime v. Williams, 45 A.D.3d 633, 634, 845 N.Y.S.2d 450). Furthermore, the defendants failed to establish that additional discovery would yield any facts indicating that the plaintiff was at fault and justify the denial of the plaintiff's motion (see CPLR 3212[f]; Falcone v. Ibarra, 67 A.D.3d at 859, 889 N.Y.S.2d 238; Carpio v. Leahy Mech. Corp., 30 A.D.3d 554, 555, 816 N.Y.S.2d 762; Szczotka v. Adler, 291 A.D.2d 444, 737 N.Y.S.2d 121). Accordingly, the Supreme Court properly granted the plaintiff's motion for summary judgment on the issue of liability.

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