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ALTHOUGH DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW BY TURNING LEFT INTO PLAINTIFF’S PATH, DEFENDANT RAISED A QUESTION OF FACT ABOUT WHETHER PLAINTIFF WAS SPEEDING (SECOND DEPT).

The Second Department determined plaintiff’s motion for summary judgment in this traffic accident case was properly denied. Plaintiff made out a prima facie case by demonstrating defendant, Gavitt, made a left turn across the plaintiff’s path and plaintiff entered an intersection. However Gavitt raised a question of fact by alleging plaintiff was speeding:

Here, the plaintiff demonstrated, prima facie, that Gavitt was negligent in violating Vehicle and Traffic Law § 1141 “by making a left turn into the path of oncoming traffic without yielding the right of way to the plaintiff when the turn could not be made with reasonable safety”… . The undisputed fact that Gavitt was, in fact, unable to complete his left turn ” without being struck by [the plaintiff’s] vehicle'” … demonstrates that he violated Vehicle and Traffic Law § 1141 by failing to “yield the right of way to any vehicle approaching from the opposite direction which [was] . . . so close as to constitute an immediate hazard” … . “Regardless of which vehicle entered the intersection first, [the plaintiff], as the driver with the right-of-way, was entitled to anticipate that [Gavitt] would obey traffic laws which required [him] to yield”… .

The plaintiff also demonstrated, prima facie, that Gavitt’s negligence was the sole proximate cause of the accident, and that the plaintiff was not comparatively at fault in the happening of the accident. In this regard, the plaintiff testified at his deposition that he was traveling at 25 miles per hour immediately prior to the accident and, upon seeing Gavitt commence making the left turn in front of him, he immediately applied his brakes in an attempt to avoid colliding with Gavitt’s vehicle, but he was unable to avoid the collision … .

In opposition to the plaintiff’s prima facie showing, however, the defendants raised a triable issue of fact as to whether the plaintiff was traveling at an excessive rate of speed immediately prior to the accident and whether he could have avoided the accident through the exercise of reasonable care … . Shashaty v Gavitt, 2018 NY Slip Op 01347, Second Dept 2-28-18

NEGLIGENCE (TRAFFIC ACCIDENTS, ALTHOUGH DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW BY TURNING LEFT INTO PLAINTIFF’S PATH, DEFENDANT RAISED A QUESTION OF FACT ABOUT WHETHER PLAINTIFF WAS SPEEDING (SECOND DEPT))/TRAFFIC ACCIDENTS (ALTHOUGH DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW BY TURNING LEFT INTO PLAINTIFF’S PATH, DEFENDANT RAISED A QUESTION OF FACT ABOUT WHETHER PLAINTIFF WAS SPEEDING (SECOND DEPT))/VEHICLE AND TRAFFIC LAW (ALTHOUGH DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW BY TURNING LEFT INTO PLAINTIFF’S PATH, DEFENDANT RAISED A QUESTION OF FACT ABOUT WHETHER PLAINTIFF WAS SPEEDING (SECOND DEPT))

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