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QUESTION OF FACT WHETHER DEFENDANT DRIVER ATTEMPTED TO MAKE A LEFT TURN WHEN PLAINTIFF’S DECEDENT WAS TOO CLOSE IN THE ON-COMING LANE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined there was a question of fact whether defendant driver executed a left turn when plaintiff’s decedent, who apparently was being chased by police, was too close:

“Vehicle and Traffic Law § 1141 provides that the ‘driver of a vehicle intending to turn to the left within an intersection . . . shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard'” … . 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, the driver should have seen … . “At the same time, a 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, the evidence submitted by [defendants] in support of their motion … failed to eliminate triable issues of fact as to whether [defendant driver] was free from fault in the happening of the accident and, if not, whether [plaintiff’s decedent’s] negligence was the sole proximate cause of the accident … . Specifically, a triable issue of fact exists, inter alia, as to whether, at the time [defendant driver] initiated her turn, [plaintiff’s decedent’s] vehicle was “‘so close as to constitute an immediate hazard'” … . Gaudio v City of New York, 2020 NY Slip Op 08041, Second Dept 12-30-20

 

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