ISSUE OF FACT WHETHER DRIVER WITH THE RIGHT OF WAY SHOULD HAVE SEEN THE CAR THAT WAS NOT SLOWING DOWN AS IT APPROACHED THE INTERSECTION, SUPREME COURT REVERSED, TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined Supreme Court should not have granted the Sile defendants’ motion for summary judgment in this intersection traffic accident case. Matthew Sile had the right of way when his truck was broadsided by a car (driven by Buck) which failed to stop an the intersection. The majority held that the papers submitted by the Sile defendants raised an issue of fact whether Matthew Sile should have seen the Buck car which was not slowing down as it approached the intersection:

Although plaintiffs do not dispute that Buck was negligent in violating the Vehicle and Traffic Law or that Matthew had the right-of-way as he proceeded straight through the intersection, it is well settled that ” there may be more than one proximate cause of [a collision]’ “… . Thus, in their motions, the Sile defendants had the initial burden of establishing as a matter of law either that Matthew was not negligent or that any negligence on his part was not a proximate cause of the accident… . We conclude in both appeals that the Sile defendants failed to meet that burden … .

Although “a driver who has the right[-]of[-]way is entitled to anticipate that [the drivers of] other vehicles will obey the traffic laws that require them to yield” … , that driver nevertheless has a “duty to exercise reasonable care in proceeding through [an] intersection” … , and “cannot blindly and wantonly enter an intersection”… . Here, by their own submissions, the Sile defendants raised a triable issue of fact whether Matthew met his “duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident” … . Gilkerson v Buck, 2018 NY Slip Op 08782, Fourth Dept 12-21-18