Aguila v. Benitez

• Decision Date: 21 December 2017
• Docket Number: 5253,Index 305280/13
• Citation: 156 A.D.3d 538,67 N.Y.S.3d 196
• Parties: Arturo AGUILA, Plaintiff–Appellant, v. Jose D. BENITEZ, et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

156 A.D.3d 538

67 N.Y.S.3d 196

Arturo AGUILA, Plaintiff–Appellant,

v.Jose D. BENITEZ, et al., Defendants–Respondents.

5253

Index 305280/13

Supreme Court, Appellate Division, First Department, New York.

ENTERED: DECEMBER 21, 2017

Mitchell Dranow, Sea Cliff, for appellant.

Marjorie E. Bornes, Brooklyn, for respondents.

Tom, J.P., Friedman, Renwick, Kahn, Kern, JJ.

Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered on or about July 25, 2016, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants met their prima facie burden of demonstrating plaintiff's negligence. Defendants submitted the deposition testimony of both drivers, which established that the accident occurred when plaintiff attempted to make a left turn from the right-hand lane of the Cross Bronx Expressway service road, in violation of Vehicle and Traffic Law § 1160(c), and struck the side of defendants' vehicle as it was lawfully driving through the intersection (see Maysonet v. Ean Holdings, LLC, 137 A.D.3d 517, 27 N.Y.S.3d 30 [1st Dept.2016] ; Foreman v. Skeif, 115 A.D.3d 568, 982 N.Y.S.2d 314 [1st Dept. 2014] ; Mora v. Garcia, 3 A.D.3d 478, 771 N.Y.S.2d 138 [2d Dept.2004] ). Further, plaintiff admitted that he did not turn on his left-turn signal until right before he started the turn and that he did not see defendants' vehicle to his left until he struck it.

Defendant driver's testimony established his lack of comparative fault. He testified that he was driving within the speed limit, with the traffic light in his favor, and could not avoid the accident since his vehicle was ahead of plaintiff's vehicle when plaintiff's vehicle hit the side of his vehicle. In opposition, plaintiff failed to submit anything other than conclusory and speculative assertions, and thus failed to raise a triable issue of fact as to defendant driver's comparative negligence (see Revels v. Schoeps, 140 AD3d 661, 662, 33 N.Y.S.3d 721 [1st Dept.2016], lv denied 28 N.Y.3d 911, 2016 WL 7401256 [2016] ; Foreman, 115 A.D.3d at 569, 982 N.Y.S.2d 314 ; Mora, 3 A.D.3d at 479, 771 N.Y.S.2d 138 ).