Opinion
CA 03-01621.
February 11, 2004.
Appeal from an order of the Supreme Court, Erie County (Nelson H. Cosgrove, J.), entered March 18, 2003. The order denied defendant's motion for summary judgment dismissing the complaint in a personal injury action.
BROWN KELLY, LLP, BUFFALO (RENATA KOWALCZUK OF COUNSEL), FOR DEFENDANT-APPELLANT.
BRAUTIGAM BRAUTIGAM, L.L.P., FREDONIA (DARYL P. BRAUTIGAM OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
Before: PRESENT: PIGOTT, JR., P.J., GREEN, PINE, HURLBUTT, AND SCUDDER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed with costs.
Memorandum: Plaintiffs commenced this action to recover damages for injuries sustained by Cindy L. Gawera (plaintiff) when the vehicle she was driving collided with defendant's vehicle shortly after defendant exited a driveway and pulled onto the highway on which plaintiff was traveling. Supreme Court properly denied defendant's motion for summary judgment dismissing the complaint. Defendant failed to meet her initial burden on the motion ( see Karram v. Cirillo, 281 A.D.2d 946). Defendant's own submissions raise triable issues of fact whether defendant properly yielded to oncoming traffic when she exited the driveway ( see generally Ferrara v. Castro, 283 A.D.2d 392, 393) or "slow[ed] down without proper signaling so as to avoid a collision" ( Niemiec v. Jones, 237 A.D.2d 267, 268; see Karram, 281 A.D.2d 946; Silvestro v. Wartella, 224 A.D.2d 799). Because defendant failed to meet her initial burden on the motion, there is no need to consider the sufficiency of plaintiffs' submissions in opposition to the motion ( see Ayotte v. Gervasio, 81 N.Y.2d 1062, 1063).