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ALTHOUGH PLAINTIFF IN THIS INTERSECTION ACCIDENT CASE DID NOT HAVE A STOP SIGN AND HAD THE RIGHT-OF-WAY, THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF DRIVER COULD HAVE AVOIDED THE COLLISION WITH DEFENDANT WHO HAD ENTERED THE INTERSECTION AFTER STOPPING AT A STOP SIGN (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiffs in this intersection traffic accident case did not not demonstrate plaintiff driver, who had the right-of-way (no stop sigh), was not at fault. Defendant testified he stopped at a stop sign, looked both ways, proceeded slowly into the intersection and was half-way through when the rear of his car was struck by the plaintiff driver. Although not specifically discussed, it appears that testimony raised a question of fact whether plaintiff exercised reasonable care to avoid the collision:

“There can be more than one proximate cause of an accident” … . Hence, “[a] defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident” … . “Pursuant to Vehicle and Traffic Law § 1142(a), a driver entering an intersection controlled by a stop sign must yield the right-of-way to any other vehicle that is already in the intersection or that is approaching so closely as to constitute an immediate hazard” … . “As a general matter, a driver who fails to yield the right-of-way after stopping at a stop sign is in violation of Vehicle and Traffic Law § 1142(a) and is negligent as a matter of law” … . “Even though the driver with the right-of-way is entitled to assume that other drivers will obey the traffic laws requiring them to yield, he or she still has a duty to exercise reasonable care to avoid a collision with another vehicle already in the intersection” … . Ficalora v Almeida, 2026 NY Slip Op 00346, Second Dept 1-28-26

Practice Point: Having the right-of-way does not necessarily guarantee summary judgment in an intersection traffic accident case. A driver with the right-of-way is obligated to use reasonable care to avoid a collision with a vehicle already in the intersection.​

 

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ALTHOUGH THE OFFICER WAS RESPONDING TO AN EMERGENCY WHEN PLAINTIFF’S VEHICLE WAS STRUCK, PLAINTIFF RAISED A QUESTION OF FACT WHETHER THE OFFICER ACTED WITH RECKLESS DISREGARD FOR THE SAFETY OF OTHERS; SPECIFICALLY QUESTIONS WERE RAISED ABOUT THE EXCESSIVE SPEED OF THE POLICE VEHICLE AND WHETHER THE SIREN WAS ON AS REQUIRED BY DEPARTMENT POLICY (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the defendant city was not entitled to summary judgment dismissing this action stemming from plaintiff’s vehicle being struck by a police vehicle responding to an emergency. Plaintiff raised a question of fact whether the police officer’s conduct rose to the level of reckless disregard for the safety of others. The officer drove in the oncoming lane of traffic where plaintiff was attempting a left turn:

The “reckless disregard standard demands more than a showing of a lack of due care under the circumstances—the showing typically associated with ordinary negligence claims . . . Rather, for liability to be predicated upon a violation of Vehicle and Traffic Law § 1104, there must be evidence that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and has done so with conscious indifference to the outcome” … . Although the reckless disregard standard is a heightened standard compared to ordinary negligence, it “retains and recognizes the potential for liability as a protection for the general public against disproportionate, overreactive conduct” … . * * *

… [P]laintiff’s submissions raise questions of fact as to the speed at which the officer’s vehicle was traveling at the time of the accident and whether the officer was operating the siren in his vehicle, which would have been required by department policy … . Gwathney v City of Buffalo, 2025 NY Slip Op 07175, Fourth Dept 12-23-25

Practice Point: Here in this police-emergency-traffic-accident case, questions of fact about the speed of the police vehicle (in the oncoming lane where plaintiff was attempting a left turn) and whether the siren was on as required by department policy precluded summary judgment.

 

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THE ADMINISTRATIVE LAW JUDGE WENT AHEAD WITH THE DRIVER’S LICENSE REVOCATION HEARING IN THE ABSENCE OF THE OFFICERS WHO ARRESTED THE DRIVER FOR DWI; THE DRIVER’S ARGUMENT HE WAS DENIED DUE PROCESS BECAUSE HE WAS UNABLE TO CROSS-EXAMINE THE OFFICERS WAS REJECTED; THE DRIVER HAD SUBPOENAED THE OFFICERS BUT CHOSE NOT TO USE THE CPLR 2308 PROCEDURE FOR ENFORCEMENT OF THE SUBPOENAS; THE AVAILABILITY OF THE ENFORCEMENT PROCEDURE WAS DEEMED “SUFFICIENT PROCESS” (CT APP).

The Court of Appeals, affirming the Appellate Division, in a full-fledged opinion by Judge Wilson, determined a driver, Monaghan, whose license was automatically suspended when he refused to submit to a chemical test at the time he was arrested for DWI, was not denied due process rights when the Department of Motor Vehicles (DMV) Administrative Law Judge (ALJ) revoked his license despite the arresting officers’ failure to appear at the revocation hearing. Monaghan had subpoenaed the officers and argued he was denied his right to cross-examine them. The Court of Appeal noted that Monaghan could have sought to enforce the subpoenas but chose not to. The Court found that the procedure for enforcement of subpoenas is not unduly burdensome. Therefore requiring Monaghan to use that procedure to exercise his right to cross-examine the officers does not amount to a denial of due process:

… [W]e reject the contention that Mr. Monaghan’s was deprived of his due process right to cross-examine the Troopers. His private interest in retaining his driver’s license and the government’s interest in public safety are both significant. The due process analysis, here, turns on the benefit and burden of requiring a motorist to seek judicial enforcement of a subpoena. Mr. Monaghan chose not to avail himself of the process set forth in CPLR 2308 (b). The process of applying to enforce a nonjudicial subpoena is not so unduly burdensome as to constitute a deprivation of due process of law. Our holding is consistent with appellate courts’ decisions rejecting due process challenges in other types of administrative proceedings where the petitioner has not attempted to enforce a subpoena … . It is undisputed that Mr. Monaghan did not seek enforcement, nor did he request an adjournment to do so. Matter of Monaghan v Schroeder, 2025 NY Slip Op 06959, CtApp 12-16-25

Practice Point: Here the officers who arrested the driver for DWI did not appear at the license revocation hearing. The driver argued his inability to cross-examine the officers deprived him of due process of law. However, the driver had subpoenaed the officers. He could have used the CPLR 2308 (b) procedure for enforcing the subpoenas but chose not to. The availability of the enforcement procedure was deemed sufficient process.

 

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TO BE ENTITLED TO SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE THE TOWN DEFENDANTS NEEDED TO DEMONSTRATE EITHER THAT THEY WERE NOT NEGLIGENT OR THAT THEIR NEGLIGENCE WAS NOT A PROXIMATE CAUSE OF THE ACCIDENT; BY FOCUSING ONLY ON PROXIMATE CAUSE, THE TOWN DEFENDANTS EFFECTIVELY ASSUMED THEY WERE NEGLIGENT; THE EVIDENCE THE DRIVER OF THE TOWN DUMP TRUCK WAS TRAVELING TOO FAST FOR THE CONDITIONS PRECLUDED SUMMARY JUDGMENT IN THE TOWN’S FAVOR (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the town defendants’ motion for summary judgment in this traffic accident case should not have been granted. The town’s dump truck collied with a car which failed to yield the right–of-way at an intersection, veered into plaintiff’s decedent’s lane and collided with plaintiff’s decedent’s car. The town focused its argument on proximate cause, contending that the car which failed to yield the right-of-way was the sole proximate cause of the accident. But, to be entitled to summary judgment in this context, the defendant must demonstrate it was not negligent. By focusing on proximate case, the town defendants “must assume, arguendo, that they were negligent:”

The Town defendants’ submissions established that LaRocca, who was driving a dump truck containing 10 tons of asphalt, did not adhere to an advisory traffic sign recommending that speed be reduced to 35 miles per hour prior to entering the intersection and further established that the tree line limited his view of cross traffic at the intersection. If a trier of fact were to determine that LaRocca’s speed was unreasonable under the existing conditions, the trier of fact could also conclude that LaRocca’s own unreasonable speed was what deprived him of sufficient time to avoid the collision … . * * *

By focusing on “sole proximate cause” in this common-law negligence action, the Town defendants overlook the fact that their burden on their motion was to establish “as a matter of law that [they were] not negligent or that, even if [they were] negligent, [their] negligence was not a proximate cause of the accident” … . In other words, when moving for summary judgment in the negligence context and addressing only the issue of proximate cause, the Town defendants must effectively assume, arguendo, that they were negligent … . Inasmuch as the Town defendants did not do that here, we need not address their proximate cause argument. Gates v Simpson, 2025 NY Slip Op 04313, Fourth Dept 7-25-24

Practice Point: A defendant in a traffic accident case is entitled to summary judgment (1) if defendant was not negligent; or (2) even if defendant was negligent, defendant was not a proximate cause of the accident. In making a motion for summary judgment, if a defendant does not address defendant’s own negligence and focuses only on proximate cause, the defendant is “assuming” defendant was negligent.

 

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DEFENDANT’S VEHICLE WAS STRUCK BY A VEHICLE WHICH WAS BEING CHASED BY POLICE AND WHICH FAILED TO OBEY A STOP SIGN; DEFENDANT WAS ENTITLED TO SUMMARY JUDGMENT; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined defendant was entitled to summary judgment in this intersection traffic accident case. Plaintiff was a passenger in a Honda which was being chased by police. Defendant, whose car was struck by the Honda when the driver of the Honda failed to obey a stop sign, could justifiably assume the driver of the Honda would obey the stop sign. The dissent argued there was a question of fact whether defendant breached the duty to see what should be seen:

We respectfully disagree with our dissenting colleagues that defendant failed to meet his initial burden of establishing that he was free of comparative fault. … [Defendant testified] the collision occurred “instantly” after he first saw the car. * * * … [P]laintiff testified that he “blacked out” in the accident and did not know how it was caused. He was not even sure that the accident occurred at an intersection. All he could remember was the Honda proceeding straight with the police behind them and that he was “a little shaken up because [he had] never been in a high speed [chase].” That was “all [he could] remember, and [then] it was just boom.” Another occupant of the Honda testified that, as the Honda approached the intersection, “[i]t tried to stop, but . . . [they] were going a little too fast” and slid into the intersection. Defendant therefore established that the Honda never stopped at the stop sign before proceeding into the intersection and colliding with defendant’s vehicle. Inasmuch as the evidence submitted by defendant established that he had, at most, “only seconds to react” to the Honda that failed to yield the right-of-way, he established as a matter of law that he was not comparatively negligent … . Brown v City of Buffalo, 2025 NY Slip Op 03902, Fourth Dept 6-27-25

Practice Point: Here defendant’s vehicle was struck by a vehicle which was being chased by police and which did not obey a stop sign. The complaint against defendant, brought by a passenger in the vehicle which ran the stop sign, should have been dismissed. A two-justice dissent argued there was a question of fact whether defendant breached the duty of a driver to see what could be seen.

 

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PLAINTIFF’S DECEDENT WAS KILLED WHEN DEFENDANT DRIVER, WHO WAS BEING CHASED BY THE POLICE DEFENDANTS, COLLIDED WITH PLAINTIFF’S DECEDENT’S VEHICLE; THE DEFENSE VERDICT IN THE “RECKLESS DISREGARD” ACTION AGAINST THE POLICE WAS REVERSED BECAUSE OF THE OMISSION OF RELEVANT EVIDENCE AND THE ADMISSION OF PREJUDICIAL EVIDENCE; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing the defense verdict and ordering a new trial in this “reckless disregard” action against the Nassau County Police Department stemming from a fatal traffic accident during a police chase, determined several evidentiary errors deprived plaintiff’s decedent of a fair trial. The vehicle which the police were chasing, driven by defendant Daley, collided with plaintiff’s decedent’s vehicle:

Supreme Court erred in declining to admit the Nassau County Police Department Rules and Regulations (hereinafter the rules) into evidence. An officer’s alleged violation of internal guidelines, although not dispositive, may be some evidence of whether an officer acted with reckless disregard … . The court compounded this error when it charged the jury pursuant to PJI 2:79A, specifically charging the jury that it may consider the rules when determining whether the police officers acted with reckless disregard for the safety of others. To the extent necessary, the rules could have been admitted with a limiting instruction that they may considered only as some evidence of recklessness, along with other factors … .

Further, the Supreme Court erred in admitting the full decision from a Dunaway/Huntley/Mapp hearing in the defendant driver’s criminal proceeding, as its subject matter was collateral and merely served to bolster the testimony of the police officers … and was therefore prejudicial. The court also erred in entirely precluding cross-examination of Detective Peter Ellison with respect to prior bad acts. Under the circumstances of this case, these errors were not harmless (see CPLR 2002), as the evidence related directly to issues to be determined by the jury … , i.e., the officers’ credibility, the nature of the police stop, and the question of when the officers activated their emergency lights. Yun v Daley, 2025 NY Slip Op 03224, Second Dept 5-28-25

Practice Point: In the “reckless disregard” action against the police stemming from a high-speed chase, the police department rules should have been admitted in evidence because a violation of the rules is some evidence of negligence.

Practice Point: Here the defendant driver who collided with plaintiff’s decedent during the police chase was charged criminally. It was prejudicial error to allow a decision in the criminal matter in evidence in this “reckless disregard” action against the police. It was also error to preclude the cross-examination of a detective about prior bad acts.

 

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HERE PLAINTIFF HAD THE RIGHT-OF-WAY ENTERING AN INTERSECTION AND DEFENDANT FAILED TO YIELD; PLAINTIFFS WERE ENTITLED TO SUMMARY JUDGMENT ON LIABILITY AND DISMISSAL OF DEFENDANTS’ COMPARATIVE NEGLIGENCE AFFIRMATIVE DEFENSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs in this intersection-accident case was entitled to summary judgment on liability and dismissal of defendants’ comparative negligence affirmative defense:

“‘A driver who enters an intersection against a red traffic light in violation of Vehicle and Traffic Law § 1110(a) is negligent as a matter of law'” … . “A driver who has the right-of-way is entitled to anticipate that other drivers will obey traffic laws that require them to yield” … . Moreover, “a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield cannot be comparatively negligent for failing to avoid the collision” … .

“[T]he issue of a plaintiff’s comparative negligence may be decided in the context of a summary judgment motion where the plaintiff moves for summary judgment dismissing a defendant’s affirmative defense alleging comparative negligence” … . Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law dismissing the defendants’ affirmative defense alleging comparative negligence by demonstrating that the plaintiff driver entered the intersection with a green traffic light and had the right-of-way and that Mendez’s conduct was the sole proximate cause of the accident … . In opposition, the defendants failed to raise a triable issue of fact as to whether the plaintiff driver was comparatively negligent in causing the accident … . Ederi v Mendez, 2025 NY Slip Op 03041, Second Dept 5-21-25

Practice Point: 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 and is entitled to summary judgment dismissing the comparative negligence affirmative defense.

 

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PLAINTIFF’S TRANSLATED AFFIDAVIT WAS NOT ACCOMPANIED BY THE TRANSLATOR’S AFFIDAVIT AND WAS THEREFORE INADMISSIBLE; THE ROADWAY WHERE THE COLLISION OCCURRED WAS NOT DIVIDED INTO TWO OR MORE CLEARLY MARKED LANES; THEREFORE THE “UNSAFE LANE CHANGE” STATUTE (VEHICLE AND TRAFFIC LAW 1128(A)) DID NOT APPLY (FIRST DEPT).

The First Department, reversing Supreme Court, determined summary judgment should not have been awarded to plaintiff in this traffic accident case. Plaintiff submitted his affidavit which had been translated but did not submit an affidavit from the translator attesting to the translator’s qualifications and the accuracy of plaintiff’s affidavit. In addition, the roadway where the accident occurred was not divided into two or more clearly marked lanes. Therefore the unsafe-lane-change provision of the Vehicle and Traffic Law did not apply to the facts:

In support of his motion for summary judgment, plaintiff submitted his translated affidavit and dashcam footage from defendants’ vehicle. He argued that defendant driver made an unsafe lane change in violation of Vehicle and Traffic Law § 1128(a), which provides that “[w]henever any roadway has been divided into two or more clearly marked lanes for traffic . . . [a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.”

Plaintiff failed to demonstrate his entitlement to summary judgment. His affidavit, which was not accompanied by an affidavit from a translator attesting to the translator’s qualifications and the accuracy of the affidavit, does not comply with CPLR 2101(b) and is therefore inadmissible … . Even if the affidavit could be considered, the dashcam video does not “conclusively establish” that defendant driver violated Vehicle and Traffic Law § 1128(a) or eliminate issues of fact as to how the accident occurred … .

The dashcam video shows that Zerega Avenue was not divided into lanes in the southbound direction, and that neither vehicle was driving within a “clearly marked” lane of traffic when plaintiff’s vehicle drove up on the right side of defendants’ tractor-trailer. Moreover, the dashcam footage does not establish that defendant driver caused the accident by moving into plaintiff’s lane of traffic when it was not safe to do so. Richards v Walls, 2025 NY Slip Op 02889, First Dept 5-13-25

Practice Point: Where an affidavit submitted to support a summary judgment motion has been translated, it is not admissible unless it is accompanied by the translator’s affidavit attesting the the translator’s qualifications and the accuracy of the translation.

Practice Point: The unsafe-lane-change statute, Vehicle and Traffic Law 1128(a), does not apply unless there are two or more clearly marked lanes of travel.

 

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AT THE TIME OF THE COLLISION, THE SHERIFF’S DEPUTY WAS ENGAGED IN AN EMERGENCY OPERATION AND DID NOT ACT WITH RECKLESS DISREGARD FOR THE SAFETY OF OTHERS; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, affirming Supreme Court, over a two-justice dissent, determined the police vehicle (driven by Deputy Fong) which collided with plaintiff’s vehicle was engaged in an emergency operation and was not being operated in reckless disregard for the safety of others. The dissenters argued there was a question of fact on the “reckless disregard” issue:​

… [I]t is undisputed that the reckless disregard standard of care applies because Fong was driving an emergency vehicle and was engaged in an emergency operation at the time she proceeded through the red traffic signal (see Vehicle and Traffic Law § 1104 [b] [2]). In addition, defendants established that Fong’s conduct did not rise to a level of reckless disregard for the safety of others. Defendants’ submissions established, in particular, that Fong took several precautions before proceeding into the intersection against the red traffic signal, including bringing her vehicle to a complete stop, looking in all directions, activating her emergency lights, and proceeding slowly into the intersection … . Granath v Monroe County, 2025 NY Slip Op 02521, Fourth Dept 4-25-25

 

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ALTHOUGH THE VEHICLE OWNER, HERE A CAR DEALERSHIP, IS USUALLY VICARIOUSLY LIABLE FOR AN ACCIDENT CAUSED BY A DRIVER OPERATING THE VEHICLE WITH THE OWNER’S PERMISSION, HERE THERE IS A QUESTION OF FACT WHETHER THE DRIVER, WHO WAS TEST DRIVING THE VEHICLE, EXCEEDED THE SCOPE OF THE PERMISSION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined summary judgment against the owner of the vehicle in this traffic accident case should not have been granted. Although summary judgment against the driver, Patel, was properly granted, there was a question of fact whether the driver had exceeded the scope of the permission granted by the owner, Paragon, a car dealership. There was evidence the sales rep told Patel he could drive around the block and return in five or ten minutes. Patel had taken the car on the expressway and called the dealership 35 minutes after leaving to say he had accident:

“Vehicle and Traffic Law § 388(1) provides that, with the exception of bona fide commercial lessors of motor vehicles, which are exempt from vicarious liability under federal law, the owner of a motor vehicle is liable for the negligence of one who operates the vehicle with the owner’s express or implied consent” … . “The strong presumption of permissive use afforded by Vehicle and Traffic Law § 388, can only be rebutted by substantial evidence sufficient to show that the driver of the vehicle was not operating the vehicle with the owner’s consent” … . “An owner may place limitations on a driver’s permission to use a vehicle, such as granting consent to drive only to a particular area or for a specific purpose, and use outside the scope of permission negates the owner’s liability under the statute” … . “Thus, an owner may avoid liability under the statute if the driver exceeded the time, place[,] and purpose of the use permitted by the owner” … . Madrigal v Paragon Motors of Woodside, Inc., 2025 NY Slip Op 01620, Second Dept 3-19-25

Practice Point: The owner of a vehicle may impose limits on the permissive use of the vehicle by another. If the driver exceeds the scope of the permission to use the vehicle, the owner may not be vicariously liable under Vehicle and Traffic Law section 388.

 

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