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THE PARTY WITH THE RIGHT OF WAY ENTERING THE INTERSECTION WAS ENTITLED TO SUMMARY JUDGMENT AGAINST THE DRIVER MAKING A LEFT TURN, ALLEGATIONS THE PARTY WITH THE RIGHT OF WAY WAS SPEEDING DID NOT RAISE A QUESTION OF FACT BECAUSE THERE WAS NO EVIDENCE THE ACCIDENT COULD HAVE BEEN AVOIDED IF SPEEDING WAS NOT INVOLVED (SECOND DEPT)

The Second Department, reversing Supreme Court in this traffic accident case, determined that the driver who had the right of way entering an intersection. Aly, was entitled to summary judgment against the driver, Varela, who made a left turn into Aly’s path. The deposition testimony that Aly was speeding did not raise an issue of fact because there was no evidence Aly could have avoided the accident if traveling at the speed limit. In an apparent reference to the emergency doctrine the court noted that Aly had only seconds to react and therefore could not be deemed comparatively negligent:

The moving [ALY] defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint and all cross claims insofar as asserted against them by submitting, among other things, the deposition transcripts of the parties, as well as video surveillance footage of the accident, which demonstrated that the sole proximate cause of the accident was Varela’s violation of Vehicle and Traffic Law § 1141 in making a left turn into the path of the oncoming Aly vehicle without yielding the right-of-way… . As the driver with the right-of-way, Aly was entitled to anticipate that Varela would obey the traffic laws which required him to yield … . ” Although a driver with a right-of-way also has a duty to use reasonable care to avoid a collision, . . . a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision'” … . Here, the moving defendants established that Aly had only seconds to react to the Varela vehicle, which failed to yield.

In opposition, the plaintiffs and the Varela defendants failed to raise a triable issue of fact as to whether any negligence on the part of Aly was a substantial factor in the happening of the accident. Under the circumstances, the plaintiffs’ respective deposition testimony that Aly was speeding is “inconsequential inasmuch as the [plaintiffs] did not raise a triable issue as to whether [Aly] could have avoided the accident even if she had been traveling at or below the posted speed limit” … . Rohn v Aly, 2018 NY Slip Op 08966, Second Dept 12-26-18

 

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