Opinion
12-23-2016
Sydney H. RAIT, Plaintiff–Appellant, v. Matthew D. SHEEHAN and Smith & Nephew, Inc., Defendants–Respondents.
Lewis & Lewis, P.C., Buffalo (David M. Block Of Counsel), for Plaintiff–Appellant. Law Offices of John Wallace, Buffalo (Leo T. Fabrizi Of Counsel), for Defendants–Respondents.
Lewis & Lewis, P.C., Buffalo (David M. Block Of Counsel), for Plaintiff–Appellant.
Law Offices of John Wallace, Buffalo (Leo T. Fabrizi Of Counsel), for Defendants–Respondents.
PRESENT: PERADOTTO, J.P., CARNI, CURRAN, TROUTMAN, AND SCUDDER, JJ.
MEMORANDUM:Plaintiff commenced this action to recover damages for injuries that she allegedly sustained in a motor vehicle accident in the Town of Amherst. The accident occurred when a vehicle driven by Matthew D. Sheehan (defendant) struck the driver's side of plaintiff's vehicle while plaintiff was attempting to make a left turn from a parking lot onto Sheridan Drive.
We conclude that Supreme Court properly granted defendants' motion for summary judgment dismissing the amended complaint. Defendants met their initial burden " ‘by establishing that [defendant] was driving within the speed limit, that he did not have time to avoid the collision, and that plaintiff was entering the roadway from a parking lot’ " (Johnson v. Time Warner Entertainment, 115 A.D.3d 1295, 1295, 983 N.Y.S.2d 164 ; see generally Vehicle and Traffic Law § 1143 ), and in response plaintiff failed to raise an issue of fact (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 ). In particular, plaintiff failed to raise an issue of fact whether defendant was traveling in excess of a reasonable speed under the circumstances by her submission of a witness statement that defendant's "speed was at least" that of the posted speed limit (see generally § 1180[a] ). Contrary to plaintiff's contention, the fact that defendant may have been traveling at such a speed "is inconsequential inasmuch as there is no indication that [he] could have avoided the accident even if [he] had been traveling at a speed ... below the posted speed limit" (Daniels v. Rumsey, 111 A.D.3d 1408, 1410, 975 N.Y.S.2d 303 ; see Heltz v. Barratt, 115 A.D.3d 1298, 1299, 983 N.Y.S.2d 160, affd. 24 N.Y.3d 1185, 3 N.Y.S.3d 757, 27 N.E.3d 471 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.