Opinion
2019–08870 Index No. 34025/17
04-13-2022
Stewart N. CHOO, appellant, v. VIRGINIA TRANSPORTATION CORP., et al., respondents.
Napoli Shkolnik PLLC, New York, NY (Joseph Napoli and Craig Phemister of counsel), for appellant. Thomas K. Moore (Andrea G. Sawyers, Melville, NY [Scott W. Driver ], of counsel), for respondents.
Napoli Shkolnik PLLC, New York, NY (Joseph Napoli and Craig Phemister of counsel), for appellant.
Thomas K. Moore (Andrea G. Sawyers, Melville, NY [Scott W. Driver ], of counsel), for respondents.
FRANCESCA E. CONNOLLY, J.P., LINDA CHRISTOPHER, JOSEPH A. ZAYAS, LARA J. GENOVESI, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Rockland County (Thomas P. Zugibe, J.), dated June 28, 2019. The order granted the defendants' motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
This action arises from a two-vehicle accident which occurred on the morning of November 10, 2016, on the southbound side of Interstate 87, near Exit 14, in Rockland County. The accident involved a car driven by the plaintiff and a tractor-trailer driven by the defendant Nelson S. DeSouza, and owned by DeSouza's employer, the defendant Virginia Transportation Corp. (hereinafter together the defendants).
Following the close of discovery, the defendants moved for summary judgment dismissing the complaint. In an order dated June 28, 2019, the Supreme Court granted the defendants' motion. The plaintiff appeals.
"A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident" Flores v. Westchester County Bee Line, 186 A.D.3d 676, 676, 126 N.Y.S.3d 922 [internal quotation marks omitted]). "There can be more than one proximate cause of an accident, and, [g]enerally, it is for the trier of fact to determine the issue of proximate cause" ( Estate of Cook v. Gomez, 138 A.D.3d 675, 676–677, 30 N.Y.S.3d 148 [citations and internal quotation marks omitted]). "However, the issue of proximate cause may be decided as a matter of law where only one conclusion may be drawn from the established facts" ( Bermejo v. Khaydarov, 155 A.D.3d 597, 597–598, 63 N.Y.S.3d 107 [internal quotation marks omitted]).
A driver has a duty not to merge into a lane of moving traffic until it is safe to do so, and a violation of this duty constitutes negligence as a matter of law (see Vehicle and Traffic Law §§ 1128[a] ; 1142[b]; Edwards v. J & D Express Serv. Corp., 180 A.D.3d 871, 872, 116 N.Y.S.3d 597 ). Moreover, "[t]he operator of a vehicle with the right-of-way is entitled to assume that the opposing driver will obey the traffic laws requiring them to yield" ( Pei Ru Guo v. Efkarpidis, 185 A.D.3d 949, 951, 127 N.Y.S.3d 545 ). "Although a driver with a right-of-way also has a duty to use reasonable care to avoid a collision, ... a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision" ( Yelder v. Walters, 64 A.D.3d 762, 764, 883 N.Y.S.2d 290 [citations omitted]). Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint. They demonstrated, through the deposition testimony of the plaintiff and DeSouza, that the plaintiff was negligent as a matter of law, as he failed to yield the right-of-way and instead increased his speed in an attempt to merge on to the highway ahead of the tractor-trailer (see Yu Mei Liu v. Weihong Liu, 163 A.D.3d 611, 612, 81 N.Y.S.3d 75 ; Yelder v. Walters, 64 A.D.3d at 764, 883 N.Y.S.2d 290 ). The defendants also demonstrated that the plaintiff's actions were the sole proximate cause of the accident (see Jeong Sook Lee–Son v. Doe, 170 A.D.3d 973, 974, 96 N.Y.S.3d 302 ; Criollo v. Maggies Paratransit Corp., 155 A.D.3d 683, 684, 63 N.Y.S.3d 516 ).
In opposition, the plaintiff failed to raise a triable issue of fact (see Foley v. Santucci, 135 A.D.3d 813, 814, 23 N.Y.S.3d 338 ; 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 ). The expert affidavit submitted by the plaintiff was speculative, conclusory, and unsupported by the record (see Galano v. ILC Holdings, Inc., 164 A.D.3d 1315, 1317, 82 N.Y.S.3d 587 ).
The plaintiff's remaining contention need not be reached in light of our determination.
CONNOLLY, J.P., CHRISTOPHER, ZAYAS and GENOVESI, JJ., concur.