Brooks v. Davis

• Decision Date: 17 July 2020
• Docket Number: CA 19-01562,181
• Citation: 185 A.D.3d 1392,128 N.Y.S.3d 100
• Parties: Myles BROOKS, Plaintiff-Respondent-Appellant, v. Everlyene DAVIS, Defendant-Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

185 A.D.3d 1392

128 N.Y.S.3d 100

Myles BROOKS, Plaintiff-Respondent-Appellant,

v.Everlyene DAVIS, Defendant-Appellant-Respondent.

181

CA 19-01562

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

Entered: July 17, 2020

LAW OFFICE OF JOHN TROP, ROCHESTER (TIFFANY L. D'ANGELO OF COUNSEL), FOR DEFENDANT-APPELLANT-RESPONDENT.

BERGEN & SCHIFFMACHER, LLP, BUFFALO (TODD M. SCHIFFMACHER OF COUNSEL), FOR PLAINTIFF-RESPONDENT-APPELLANT.

PRESENT: SMITH, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is affirmed without costs.

Memorandum: Plaintiff commenced this action to recover damages for injuries that he sustained in a motor vehicle collision. Defendant was operating a vehicle in the City of Buffalo traveling west on Broadway, at a speed of 20 miles per hour, toward the intersection of Broadway and Spring Street. It was a clear day. Defendant had an unobstructed view of the intersection, which was controlled by stop signs for vehicles entering from Spring Street. Plaintiff was a passenger in a truck traveling north on Spring Street. At his deposition, he testified that the truck stopped for three or four seconds at the stop sign and then proceeded gradually into the intersection, first crossing the two eastbound lanes of Broadway before entering the westbound lane in which defendant was traveling. Defendant's vehicle collided with the passenger side of the truck, causing injury to plaintiff. At her deposition, defendant testified that she did not see the truck at the stop sign, did not see it enter the intersection, and did not see it cross two lanes of Broadway. By the time she saw the truck, it was directly in front of her and the collision had already occurred.

Defendant appeals from an order denying her motion for summary judgment dismissing the complaint. Plaintiff cross-appeals from the same order insofar as it denied that part of his cross motion seeking partial summary judgment on the issue of negligence.

Contrary to defendant's contention on her appeal, Supreme Court properly denied her motion inasmuch as she failed to meet her initial burden of establishing that she was not negligent as a matter of law (see Gilkerson v. Buck , 167 A.D.3d 1470, 1471, 90 N.Y.S.3d 750 [4th Dept. 2018] ). " ‘It is well settled that a driver who has the right-of-way is entitled to anticipate that drivers of other vehicles will obey the traffic laws requiring them to yield’ " ( Heltz v. Barratt , 115 A.D.3d 1298, 1299, 983 N.Y.S.2d 160 [4th Dept. 2014], affd 24 N.Y.3d 1185, 3 N.Y.S.3d 757, 27 N.E.3d 471 [2014] ; see Vehicle and Traffic Law § 1142 [a] ). "Nevertheless, a driver cannot blindly and wantonly enter an intersection ... but, rather, is bound to use such care to avoid [a] collision as an ordinarily prudent [motorist] would have used under the circumstances" ( Heltz , 115 A.D.3d at 1299, 983 N.Y.S.2d 160 [internal quotation marks omitted]; see Gilkerson , 167 A.D.3d at 1471-1472, 90 N.Y.S.3d 750 ). Here, defendant's own submissions, including her own deposition testimony, raised an issue of fact whether she met her "duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident" ( Gilkerson , 167 A.D.3d at 1472, 90 N.Y.S.3d 750 [internal quotation marks omitted]; cf. Heltz , 115 A.D.3d at 1298-1299, 983 N.Y.S.2d 160 ).

We respectfully disagree with the view of our dissenting colleagues that Godwin v. Mancuso , 170 A.D.3d 1672, 95 N.Y.S.3d 710 (4th Dept. 2019) compels a different result. In our view, the facts are distinguishable. The truck in the instant case approached from a greater distance than did the vehicle operated by the plaintiff in Godwin , and defendant in the instant case was traveling at half the speed of the defendant in Godwin (see id. at 1672-1673, 95 N.Y.S.3d 710 ). Nonetheless, the defendant in Godwin , unlike defendant in the instant case, noticed the approaching vehicle when it was one car length away, and she had time to apply the brakes and substantially slow her vehicle.

Inasmuch as there are issues of fact, we reject plaintiff's contention on his cross appeal that the court erred in denying his cross motion with respect to the issue of negligence (see generally Zuckerman v. City of New York , 49 N.Y.2d 557, 563, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).

All concur except LINDLEY and DEJOSEPH , JJ., who dissent and vote to modify in accordance with the following memorandum: We...