Ferrara v. Castro

• Decision Date: 07 May 2001
• Citation: 283 AD2d 392,724 N.Y.S.2d 81
• Parties: (A.D. 2 Dept. 2001) Lisa Ferrara, appellant, v Ruben Castro, et al., respondents. 2001-01104 : SECOND JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

Page 81

724 N.Y.S.2d 81 (A.D. 2 Dept. 2001)

Lisa Ferrara, appellant, v Ruben Castro, et al., respondents.

2001-01104

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT

May 7, 2001

S. Alan LeBlang, New York, N.Y., for appellant.

Mead, Hecht, Conklin & Gallagher, LLP, Mamaroneck, N.Y. (Elizabeth M. Hecht and Sara Luca Salvi of counsel), for respondents.

DAVID S. RITTER, J.P., SONDRA MILLER, LEO F. McGINITY, SANDRA L. TOWNES, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals from so much of an order of the Supreme Court, Westchester County (Bellantoni, J.), dated January 3, 2001, as denied her motion for summary judgment on the issue of liability.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion is granted.

The Supreme Court erred in denying the plaintiff's motion for summary judgment on the issue of liability. The defendant driver exited a driveway and entered into traffic without yielding. This is a "plain violation" of Vehicle and Traffic Law §§ 1143 and 1173 (Frushone v Juliano, 29 A.D.2d 833; see, Palumbo v Holtzer, 235 A.D.2d 409). By entering traffic without yielding as required by law, the defendant driver was negligent as a matter of law in colliding with the plaintiffs automobile, and his negligence was a proximate cause of the accident (see, Packer v Mirasola, 256 A.D.2d 394; Snow v Howe, 253 A.D.2d 870; Rumanov v Greenblatt, 251 A.D.2d 566; Bolta v Lohan, 242 A.D.2d 356).

The defendant's contention that he did not see the plaintiffs approaching car does not excuse his conduct. "[A] driver is negligent where an accident occurs because [he or she] has failed to see that which through the proper use of [his or her] senses [he or she] should have seen" (Bolta v Lohan, supra, see, Stiles v County of Dutchess, 278 A.D.2d 304). As such, the plaintiff made a prima facie showing of entitlement to judgment as a matter of law (see, Stiles v County of Dutchess, supra; Hudson v Goodwin, 272 A.D.2d 296; Pryor v Reichert, 265 A.D.2d 470; Wolfson v Milillo, 262 A.D.2d 636; Miranda v Devlin, 260 A.D.2d 451; Packer v Mirasola, supra; Snow v Howe, supra; Rumanov v Greenblatt, supra; Bolta v Lohan, supra). The defendants' speculative and conclusory assertions in opposition to the motion were insufficient to demonstrate the existence of an issue of fact (see, Stiles v County of Dutchess, supra; Hudson v Goodwin, supra; Pryor v Reichert, supra).