Opinion
2011-12-30
Bonica LESCENSKI, Individually, and Bonica Lescenski, as Fiduciary of the Estate of Robert A. Smith, Deceased, Plaintiff–Appellant, v. Michael J. WILLIAMS, Defendant–Respondent.
D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of Counsel), for Plaintiff–Appellant. MacKenzie Hughes LLP, Syracuse (Mark R. Schlegel of Counsel), for Defendant–Respondent.
D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of Counsel), for Plaintiff–Appellant. MacKenzie Hughes LLP, Syracuse (Mark R. Schlegel of Counsel), for Defendant–Respondent.
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.
MEMORANDUM:
Plaintiff commenced this action, individually and as fiduciary of the estate of Robert A. Smith (decedent), seeking damages for the wrongful death of decedent as the result of an accident in a four-way intersection controlled by a traffic light. That accident occurred when the vehicle driven by decedent's wife and in which decedent was a passenger collided with the vehicle driven by defendant. We reject plaintiff's contention that Supreme Court erred in granting defendant's motion for summary judgment dismissing the complaint. It is well settled that a driver “who has the right[-]of[-]way is entitled to anticipate that [the drivers of] other vehicles will obey the traffic laws that require them to yield” ( Namisnak v. Martin, 244 A.D.2d 258, 260, 664 N.Y.S.2d 435; see Rogers v. Edelman, 79 A.D.3d 1803, 913 N.Y.S.2d 854; Wallace v. Kuhn, 23 A.D.3d 1042, 1043, 804 N.Y.S.2d 187). Defendant “met his initial burden by establishing as a matter of law ‘that the sole proximate cause of the accident was [the] failure [of decedent's wife] to yield the right[-]of[-]way’ to [defendant]” ( Guadagno v. Norward, 43 A.D.3d 1432, 1433, 842 N.Y.S.2d 844; see Galvin v. Zacholl, 302 A.D.2d 965, 967, 755 N.Y.S.2d 175, lv. denied 100 N.Y.2d 512, 767 N.Y.S.2d 393, 799 N.E.2d 616; Kelsey v. Degan, 266 A.D.2d 843, 697 N.Y.S.2d 426). In support of the motion, defendant established that, as decedent's wife approached the intersection, defendant was traveling at a lawful rate of speed, had the right-of-way with respect to her vehicle and did not have an opportunity to avoid the accident.
In opposition to the motion, plaintiff failed to raise a triable issue of fact whether defendant was negligent based on his speed or failure to keep a proper lookout ( see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). Contrary to plaintiff's contention, “[t]he speculative affidavit of [her] expert containing alternative explanations concerning the manner in which the accident occurred is insufficient to defeat the motion” ( Van Ostberg v. Crane, 273 A.D.2d 895, 896, 709 N.Y.S.2d 774; see Wasson v. Szafarski, 6 A.D.3d 1182, 776 N.Y.S.2d 423).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.