Vainer v. DiSalvo
| Decision Date | 21 December 2010 |
| Citation | 914 N.Y.S.2d 236,79 A.D.3d 1023 |
| Parties | Shiran VAINER, plaintiff, v. C.J. DiSALVO, et al., respondents, Alexza Santiago, appellant. |
| Court | New York Supreme Court — Appellate Division |
Kaplan, Hanson, McCarthy, Adams, Finder & Fishbein, East Elmhurst, N.Y. (James McCarthy of counsel), for appellant.
MARK C. DILLON, J.P., DANIEL D. ANGIOLILLO, ARIEL E. BELEN, and SHERI S. ROMAN, JJ.
In an action to recover damages for personal injuries, the defendant Alexza Santiago appeals from an order of the Supreme Court, Kings County (Martin, J.), dated May 11, 2010, which denied her motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against her.
ORDERED that the order is reversed, on the law, with costs payable by the defendants C.J. DiSalvo and Joanne M. DiSalvo, and the motion of the defendant Alexza Santiago for summary judgment dismissing the complaint and all cross claims insofar as asserted against her is granted.
The plaintiff allegedly was injured when she was a passenger in a vehicle ownedand operated by the defendant Alexza Santiago, which collided with a vehicle owned by the defendant Joanne M. DiSalvo and operated by the defendant C.J. DiSalvo (hereinafter C.J.; together the DiSalvos). Immediately preceding the accident, the two vehicles were traveling in the same direction on Ring Road which encircles the parking area at the Staten Island Mall (hereinafter the mall), with Santiago's car traveling in the right lane and C.J.'s car in the left lane. When C.J. observed a parking spot located to the right of Ring Road in the parking lot of the mall, he made a sudden right turn in front of the lane in which Santiago's car was traveling in an attempt to enter the parking lot.
Santiago moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against her. While the plaintiff did not oppose Santiago's motion, the DiSalvos did. The Supreme Court denied Santiago's motion, finding that a triable issue of fact existed. We reverse.
Santiago established her prima facie entitlement to judgment as a matter of law by presenting uncontroverted evidence that C.J. made a sudden right turn from the left lane in violation of Vehicle and Traffic Law §§ 1128(a), 1160(a), and 1163(a). C.J. testified at his deposition that, as he was driving in the left lane, he saw a parking spot in the parking lot to the right of Ring Road, causing him to turn right from the left lane crossing the right lane in which Santiago was traveling so that the accidentoccurred as his vehicle was perpendicular to Ring Road. C.J. also testified that he observed the parking spot only seconds before the accident occurred. The plaintiff and Santiago submitted affidavits corroborating C.J.'s version of how the accident occurred.
A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law ( see Botero v. Erraez, 289 A.D.2d 274, 734 N.Y.S.2d 565; Ferrara v. Castro, 283 A.D.2d 392, 724 N.Y.S.2d 81; Packer v. Mirasola, 256 A.D.2d 394, 681 N.Y.S.2d 559). Through C.J.'s testimony and the affidavits, Santiago established that DiSalvo was negligent as a matter of law ( see e.g. Dimou v. Iatauro, 72 A.D.3d 732, 899 N.Y.S.2d 308; Blangiardo v. Hirsch, 29 A.D.3d 841, 815 N.Y.S.2d 692; Gomez v. Sammy's Transp., Inc., 19 A.D.3d 544, 798 N.Y.S.2d 84; Bous v. Fahey, 250 A.D.2d 638, 672 N.Y.S.2d 422). She also established that C.J.'s negligence was the sole proximate cause of the accident, without any comparative negligence on her part. While a driver is required to "see that which through proper use of [his or her] senses [he or she] should have seen" ( Bongiovi v. Hoffman, 18 A.D.3d 686, 687, 795 N.Y.S.2d 354 [internal quotation marks omitted]; see Thompson v. Schmitt, 74 A.D.3d 789, 902 N.Y.S.2d 606; Mohammad v. Ning, 72 A.D.3d 913, 915, 899 N.Y.S.2d 356; Bolta v. Lohan, 242 A.D.2d 356, 661 N.Y.S.2d 286), a driver who has the right-of-way is entitled to anticipate that the other motorist will obey the traffic law requiring him or her to yield ( see Platt v. Wolman, 29 A.D.3d 663, 816 N.Y.S.2d 121; Dileo v. Barreca, 16 A.D.3d 366, 367-368, 793 N.Y.S.2d 53; Morgan v. Hachmann, 9 A.D.3d 400, 780 N.Y.S.2d 33). "[A]...
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