The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this car accident case should not have been granted. Plaintiff apparently made a left turn in front of defendant’s car which was in the on-coming lane. Defendant struck plaintiff’s car:
“A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident”… . Pursuant to Vehicle and Traffic Law § 1141, the operator of a vehicle intending to turn left within an intersection must yield the right-of-way to any oncoming vehicle which is within the intersection or so close to it as to constitute an immediate hazard … . A violation of this statute constitutes negligence per se … .
The operator of an oncoming vehicle with the right-of-way is entitled to assume that the opposing operator will yield in compliance with the Vehicle and Traffic Law … . A driver is negligent where he or she failed to see that which, through proper use of his or her senses, he or she should have seen … . The driver traveling with the right-of-way may nevertheless be found to have contributed to the happening of the accident if he or she did not use reasonable care to avoid the accident … .
Here, in support of the motion, the defendant submitted, inter alia, the deposition testimony of the parties. The defendant attested that she never saw the front of the plaintiff’s vehicle and that when she first saw the plaintiff’s vehicle, which was “moving like a snail,” she saw the middle part of the vehicle directly ahead of her. Viewing the evidence in the light most favorable to the plaintiff as the nonmoving party, the defendant failed to establish, prima facie, her freedom from comparative fault and that the plaintiff’s alleged violation of the Vehicle and Traffic Law was the sole proximate cause of the accident … . Aponte v Vani, 2017 NY Slip Op 08252, Second Dept 11-22-17
NEGLIGENCE (TRAFFIC ACCIDENTS, DESPITE PLAINTIFF’S APPARENT VIOLATION OF THE VEHICLE AND TRAFFIC LAW, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED IN THIS CAR ACCIDENT CASE (SECOND DEPT))/TRAFFIC ACCIDENTS ( DESPITE PLAINTIFF’S APPARENT VIOLATION OF THE VEHICLE AND TRAFFIC LAW, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED IN THIS CAR ACCIDENT CASE (SECOND DEPT))/COMPARATIVE FAULT (TRAFFIC ACCIDENTS, DESPITE PLAINTIFF’S APPARENT VIOLATION OF THE VEHICLE AND TRAFFIC LAW, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED IN THIS CAR ACCIDENT CASE (SECOND DEPT)