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DEFENDANT, IN VIOLATION OF THE VEHICLE AND TRAFFIC LAW, FAILED TO YIELD THE RIGHT OF WAY WHEN PULLING OUT OF A PARKING LOT IN THIS TRAFFIC ACCIDENT CASE; PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiffs’ motion for summary judgment in this traffic accident case should have been granted. Defendant failed to yield the right of way when entering the roadway from a parking lot:

“It is well settled that 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. Because [defendant] was entering the roadway from a parking lot, []he was required to yield the right-of-way to [plaintiff’s] vehicle” ( … see Vehicle and Traffic Law § 1143). Here, plaintiffs met their initial burden of proof with respect to defendant’s negligence by submitting, inter alia, plaintiff’s deposition testimony recounting the circumstances of the accident and the corroborating police report, which established as a matter of law that defendant violated Vehicle and Traffic Law § 1143, breached his duty to operate his vehicle with due care, and thereby caused the accident … .

… Defendant’s claimed inability to recall the circumstances of the accident “is not affirmative proof that the event did not happen[ and is] . . . thus insufficient to create an issue of fact” … . Moreover, while defendant made inconsistent statements about his actions before pulling into the street from the parking lot, those statements offered no basis for a rational factfinder to excuse his violation of Vehicle and Traffic Law § 1143 or negate his responsibility for the accident … . Kowalyk v Wal-Mart Stores, Inc., 2020 NY Slip Op 05346, Fourth Dept 10-2-20

 

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