Barbaruolo v. Difede

• Decision Date: 18 May 2010
• Citation: 900 N.Y.S.2d 671,73 A.D.3d 957
• Parties: Angelo BARBARUOLO, etc., respondent, v. Robert F. DIFEDE, et al., appellants.
• Court: New York Supreme Court — Appellate Division

900 N.Y.S.2d 671

73 A.D.3d 957

Angelo BARBARUOLO, etc., respondent,

v.Robert F. DIFEDE, et al., appellants.

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

May 18, 2010.

Huenke & Rodriguez, Melville, N.Y. (Robert P. Louttit and Anita Nissan Yehuda of counsel), for appellants.

Duffy & Duffy, Uniondale, N.Y. (Michael A. Santo of counsel), for respondent.

In an action, inter alia, to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Nassau County (Brandveen, J.), dated July 7, 2009, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is granted.

A driver is not required to anticipate that an automobile going in the opposite direction will cross over into oncoming traffic ( see Snemyr v. Morales-Aparicio, 47 A.D.3d 702, 703, 850 N.Y.S.2d 489; Lee v. Ratz, 19 A.D.3d 552, 553, 798 N.Y.S.2d 80). Indeed, "[c]rossing a double yellow line into the opposing lane of traffic, in violation of Vehicle and Traffic Law § 1126(a), constitutes negligence as a matter of law, unless justified by an emergency situation not of the driver's own making" ( Foster v. Sanchez, 17 A.D.3d 312, 313, 792 N.Y.S.2d 579; see Sullivan v. Mandato, 58 A.D.3d 714, 714, 873 N.Y.S.2d 96; Haughey v. Noone, 262 A.D.2d 284, 284, 691 N.Y.S.2d 553). Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that the plaintiff's decedent violated Vehicle and Traffic Law § 1126(a) by crossing over a double yellow line into an opposing lane of traffic, thereby causing the collision ( see Scott v. Kass, 48 A.D.3d 785, 785, 851 N.Y.S.2d 649; Snemyr v. Morales-Aparicio, 47 A.D.3d at 703, 850 N.Y.S.2d 489). In opposition, the plaintiff failed to submit evidence sufficientto raise a triable issue of fact. As the plaintiff correctly points out, since the decedent died as a result of the accident and is thus unable to describe the events in question, the plaintiff is entitled to every inference that can reasonably be drawn from the evidence in determining whether a prima facie case of negligence is made ( see Noseworthy v. City of New York, 298 N.Y. 76, 80, 80 N.E.2d 744). However, it does not relieve the plaintiff of the obligation to provide some proof from which negligence can reasonably be inferred ( see Marsch v....