Opinion
2013-02-8
Michel D. TYSON, Plaintiff–Appellant, v. Lawrence NAZARIAN, Defendant–Respondent.
Parisi & Bellavia, Rochester (Timothy C. Bellavia of Counsel), for Plaintiff–Appellant. Burgio, Kita & Curvin, Buffalo (Hilary C. Banker of Counsel), for Defendant–Respondent.
Parisi & Bellavia, Rochester (Timothy C. Bellavia of Counsel), for Plaintiff–Appellant. Burgio, Kita & Curvin, Buffalo (Hilary C. Banker of Counsel), for Defendant–Respondent.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, SCONIERS, AND MARTOCHE, JJ.
MEMORANDUM:
On remittitur from the Court of Appeals, we are called upon to address plaintiff's contention that she is entitled to partial summary judgment on the issue of defendant's negligence. On this record, it is undisputed that defendant made a left-hand turn in his vehicle, in front of plaintiff's vehicle. The driver in the lane closest to defendant had stopped to give defendant the opportunity to turn, but defendant could not or did not see plaintiff's vehicle in the outer lane. When defendant executed the turn, he collided with plaintiff's vehicle, which was traveling straight through the intersection with the right-of-way. Plaintiff likewise did not see defendant's vehicle until it was too late to stop without a collision. Thus, the evidence establishes as a matter of law that defendant was negligent and that his negligence was the sole proximate cause of the accident ( see Rogers v. Edelman, 79 A.D.3d 1803, 1804, 913 N.Y.S.2d 854;Guadagno v. Norward, 43 A.D.3d 1432, 1433, 842 N.Y.S.2d 844). We therefore modify the order and judgment by granting that part of plaintiff's “motion and cross motion” for partial summary judgment on the issue of defendant's negligence.
Now, upon remittitur from the Court of Appeals,
It is hereby ORDERED that, upon remittitur from the Court of Appeals, the order and judgment so appealed from is unanimously modified on the law by granting that part of plaintiff's “motion and cross motion” for partial summary judgment on the issue of defendant's negligence and as modified the order and judgment is affirmed without costs.