MARK C. DILLON

Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellants. Baker, McEvoy, Morrissey & Moskovits, P.C. (Marjorie E. Bornes, Brooklyn, N.Y., of counsel), for respondents.
MARK C. DILLON, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Strauss, J.), entered April 9, 2013, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The injured plaintiff, and her husband suing derivatively, commenced this action to recover damages for injuries she allegedly sustained in a motor vehicle accident. The injured plaintiff was a passenger in a cab driven by the defendant Junel Ahmed, sued here as Ahmed Junel, and owned by the defendant QLR Seven, Inc. Ahmed had been driving the cab in the right westbound lane of the Horace Harding Expressway in Queens when another vehicle, operated and owned by individuals who are not parties to this action, attempted to merge into that lane of travel from a parked position and came into contact with the defendants' vehicle. The accident occurred about 50 feet from the nearest intersection.

The defendants moved for summary judgment dismissing the complaint, and the Supreme Court granted the defendants' motion. The plaintiffs appeal.

A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law ( see Vainer v. DiSalvo, 79 A.D.3d 1023, 1024, 914 N.Y.S.2d 236;Jones v. Radeker, 32 A.D.3d 494, 496, 820 N.Y.S.2d 321). “The driver with the right-of-way is entitled to anticipate that the other motorist will obey traffic laws which require him or her to yield” ( Williams v. Hayes, 103 A.D.3d 713, 714, 959 N.Y.S.2d 713;see Figueroa v. Diaz, 107 A.D.3d 754, 755, 967 N.Y.S.2d 109;Rahaman v. Abodeledhman, 64 A.D.3d 552, 553, 883 N.Y.S.2d 259;see also Dimou v. Iatauro, 72 A.D.3d 732, 733–734, 899 N.Y.S.2d 308).Vehicle and Traffic Law § 1143 provides that “the driver of a vehicle about to enter or cross a roadway from any place other than another roadway shall yield the right of way to all vehicles approaching on the roadway to be entered or crossed.” Vehicle and Traffic Law § 1162 requires that “no person shall move a vehicle which is stopped, standing, or parked unless and until such movement can be made with reasonable safety.”

“ ‘There can be more than one proximate cause of an accident’ ” ( Lopez v. Reyes–Flores, 52 A.D.3d 785, 786, 861 N.Y.S.2d 389, quoting Cox v. Nunez, 23 A.D.3d 427, 427, 805 N.Y.S.2d 604). This is because each driver has a duty to exercise reasonable care under the circumstances to avoid an accident ( see Lu Yuan Yang v. Howsal Cab Corp., 106 A.D.3d 1055, 1056, 966 N.Y.S.2d 167;Cajas–Romero v. Ward, 106 A.D.3d 850, 851, 965 N.Y.S.2d 559;Shui–Kwan Lui v. Serrone, 103 A.D.3d 620, 959 N.Y.S.2d 270). As a result, even where there is evidence that another driver involved in the accident was negligent as a matter of law due to a violation of the Vehicle and Traffic Law, “the proponent of a summary judgment motion has the burden of establishing freedom from comparative negligence as a matter of law” ( Pollack v. Margolin, 84 A.D.3d 1341, 1342, 924 N.Y.S.2d 282;see Regans v. Baratta, 106 A.D.3d 893, 894, 965 N.Y.S.2d 171;Shui–Kwan Lui v. Serrone, 103 A.D.3d at 620, 959 N.Y.S.2d 270;Gardella v. Esposito Foods, Inc., 80 A.D.3d 660, 660, 914 N.Y.S.2d 678). Thus, a driver traveling with the right-of-way may nevertheless be found to have contributed to the happening of the accident if he or she did not use reasonable care to avoid the accident ( see Todd v. Godek, 71 A.D.3d 872, 895 N.Y.S.2d 861).

Here, the defendants met their prima facie burden of demonstrating their entitlement to judgment as a matter of law. Ahmed's deposition testimony that the driver of the other vehicle suddenly, without signaling, attempted to merge from the parking lane into the lane in which Ahmed had been traveling, and that Ahmed saw that other vehicle only “for a second” before the impact occurred, established that the other driver violated Vehicle and Traffic Law §§ 1143 and 1162 so that the other driver was negligent as a matter of law ( see Vainer v. DiSalvo, 79 A.D.3d at 1024, 914 N.Y.S.2d 236;Jones v. Radeker, 32 A.D.3d at 496, 820 N.Y.S.2d 321). Ahmed's deposition testimony also demonstrated that Ahmed was free from fault in the happening of the accident, and that the other driver's negligence was the sole proximate cause of the accident ( see Barbato v. Maloney, 94 A.D.3d 1028, 1029, 943 N.Y.S.2d 204;Recinos v. Priamo, 94 A.D.3d 848, 848, 941 N.Y.S.2d 518; Vainer v. DiSalvo, 79 A.D.3d at 1024, 914 N.Y.S.2d 236). “[A] driver with the right-of-way who has only seconds to react to a vehicle that has failed to yield is not comparatively negligent for failing to avoid the collision” ( Vazquez v. New York City Tr. Auth., 94 A.D.3d 870, 871, 941 N.Y.S.2d 887;see Figueroa v. Diaz, 107 A.D.3d at 755, 967 N.Y.S.2d 109;Vainer v. DiSalvo, 79 A.D.3d at 1024, 914 N.Y.S.2d 236;Yelder v. Walters, 64 A.D.3d 762, 764, 883 N.Y.S.2d 290;Jaramillo v. Torres, 60 A.D.3d 734, 735, 875 N.Y.S.2d 197).

In opposition, the plaintiffs failed to raise a triable issue of fact. The injured plaintiff's deposition testimony that Ahmed was speeding, by itself, was insufficient to raise a triable issue of fact. The injured plaintiff testified at her deposition that she was unaware of the rate of speed Ahmed was actually traveling, that she was unaware of the speed limit for that section of the Horace Harding Expressway, and that she was not paying attention before the impact occurred because she was busy playing with her children in the back seat. Under those circumstances, any conclusion that the rate of speed Ahmed was traveling contributed to the accident would be mere speculation ( see Colandrea v. Choku, 94 A.D.3d 1034, 1036, 943 N.Y.S.2d 166;see e.g. Rahaman v. Abodeledhman, 64 A.D.3d at 553–554, 883 N.Y.S.2d 259;Strocchia v. City of New York, 70 A.D.3d 926, 927, 894 N.Y.S.2d 531;Batts v. Page, 51 A.D.3d 833, 834, 858 N.Y.S.2d 748).

Moreover, the police accident report submitted by the plaintiffs in opposition to the defendants' motion was inadmissible, as it was not certified as a business record ( seeCPLR 4518[a]; Hazzard v. Burrowes, 95 A.D.3d 829, 943 N.Y.S.2d 213;Hernandez v. Tepan, 92 A.D.3d 721, 722, 938 N.Y.S.2d 475;Cheul Soo Kang v. Violante, 60 A.D.3d 991, 991, 877 N.Y.S.2d 354;Noakes v. Rosa, 54 A.D.3d 317, 862 N.Y.S.2d 573). Contrary to the plaintiffs' contention, the party admission exception to the hearsay rule did not apply because the statement from Ahmed which was recorded in the police accident report was not against his own interest, and the other statement recorded in the police accident report was not made by a party to this action ( cf. Jackson v. Trust, 103 A.D.3d 851, 852, 962 N.Y.S.2d 267;Scott v. Kass, 48 A.D.3d 785, 786, 851 N.Y.S.2d 649;Kemenyash v. McGoey, 306 A.D.2d 516, 516, 762 N.Y.S.2d 629;Guevara v. Zaharakis, 303 A.D.2d 555, 756 N.Y.S.2d 465).

The plaintiffs' remaining contentions are without merit.

Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.