Opinion
2021–00678 Index No. 59613/18
07-20-2022
Hewitt G. A. DEPASS, respondent, v. Roseanne M. BENEDUCI, et al., appellants.
Collins Fitzpatrick & Schoene, LLP, White Plains, NY (Kevin P. Fitzpatrick of counsel), for appellants. Baker Leshko Saline & Drapeau, LLP, New York, NY (Betsy DeSoye of counsel), for respondent.
Collins Fitzpatrick & Schoene, LLP, White Plains, NY (Kevin P. Fitzpatrick of counsel), for appellants.
Baker Leshko Saline & Drapeau, LLP, New York, NY (Betsy DeSoye of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P., LINDA CHRISTOPHER, WILLIAM G. FORD, DEBORAH A. DOWLING, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Westchester County (Janet C. Malone, J.), entered December 15, 2020. The order granted the plaintiff's motion for summary judgment on the issue of liability.
ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the issue of liability is denied.
In May 2018, the plaintiff, while operating his motorcycle on Tuckahoe Road at its intersection with Mountaindale Road in Yonkers, allegedly was injured when his motorcycle was involved in a collision with a vehicle owned by the defendant Carolyn Cesta and operated by the defendant Roseanne M. Beneduci, as the defendants' vehicle attempted to make a left turn onto Mountaindale Road.
As a result of the accident, the plaintiff commenced this action to recover damages for personal injuries against the defendants, alleging that the defendant driver violated, inter alia, Vehicle and Traffic Law § 1141. After discovery, the plaintiff moved for summary judgment on the issue of liability. The Supreme Court granted the motion, and the defendants appeal.
Pursuant to Vehicle and Traffic Law § 1141, "[t]he driver of a vehicle intending to turn to the left within an intersection ... shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard" (see Gaudio v. City of New York, 189 A.D.3d 1546, 1548, 140 N.Y.S.3d 102 ; Ming–Fai Jon v. Wager, 165 A.D.3d 1253, 87 N.Y.S.3d 82 ). A violation of this statute constitutes negligence per se (see Katikireddy v. Espinal, 137 A.D.3d 866, 867, 26 N.Y.S.3d 775 ).
The plaintiff failed to meet his prima facie burden of demonstrating entitlement to judgment as a matter of law on the issue of liability. In support of his motion, the plaintiff submitted, inter alia, the transcripts of his deposition testimony and that of the defendants. This evidence, when viewed in the light most favorable to the defendants, as the nonmoving parties, raised triable issues of fact as to whether, at the time the defendant driver initiated her turn, the plaintiff's motorcycle was "so close as to constitute an immediate hazard" ( Vehicle and Traffic Law § 1141 ; see Gaudio v. City of New York, 189 A.D.3d at 1548, 140 N.Y.S.3d 102 ; Brodney v. Picinic, 172 A.D.3d 673, 674, 99 N.Y.S.3d 399 ; Katikireddy v. Espinal, 137 A.D.3d at 868, 26 N.Y.S.3d 775 ; cf. Shuofang Yang v. Sanacore, 202 A.D.3d 1120, 1122, 163 N.Y.S.3d 605 ).
Since the plaintiff failed to demonstrate his prima facie entitlement to judgment as a matter of law, the Supreme Court should have denied his motion for summary judgment on the issue of liability, regardless of the sufficiency of the defendants' opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
CONNOLLY, J.P., CHRISTOPHER, FORD and DOWLING, JJ., concur.