Opinion
CA 05-01212.
December 22, 2005.
Appeal from an order of the Supreme Court, Monroe County (Andrew V. Siracuse, J.), entered October 8, 2004 in a personal injury action. The order, inter alia, granted that part of plaintiff's motion for partial summary judgment on the issue of negligence.
Present: Pigott, Jr., P.J., Hurlbutt, Gorski, Smith and Lawton, JJ.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by denying the motion in its entirety and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries she sustained when a vehicle driven by defendant struck plaintiff's vehicle at an intersection controlled by a traffic light. We agree with defendant that Supreme Court erred in granting that part of plaintiff's motion for partial summary judgment on the issue of negligence, but we conclude that the court properly denied defendant's cross motion for summary judgment dismissing the complaint. We therefore modify the order accordingly. Although plaintiff testified at her deposition that defendant failed to yield the right of way to her as she made a left turn with the green light, defendant testified at her deposition that plaintiff turned left in front of her vehicle as defendant was entering the intersection. Thus, there is an issue of fact on the record before us whether plaintiff had a duty to yield to defendant's vehicle and whether she breached that duty. In addition, the deposition testimony of the parties raises an issue of fact whether defendant was traveling at an excessive speed and, if so, whether that excessive speed contributed to the accident. We thus conclude that the court erred in granting that part of plaintiff's motion on the issue of negligence ( see generally Zuckerman v. City of New York, 49 NY2d 557, 562).