Opinion
1370 CA 18–01338
03-22-2019
Deana GODWIN, Plaintiff–Respondent, v. Karly MANCUSO, Defendant–Appellant.
LAW OFFICE OF DANIEL R. ARCHILLA, BUFFALO (MARTHA E. DONOVAN OF COUNSEL), FOR DEFENDANT–APPELLANT.
LAW OFFICE OF DANIEL R. ARCHILLA, BUFFALO (MARTHA E. DONOVAN OF COUNSEL), FOR DEFENDANT–APPELLANT.
GOMEZ & BECKER, LLP, BUFFALO (BRETT D. TOKARCZYK OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted, and the complaint is dismissed.
Memorandum: Plaintiff commenced this action seeking damages for injuries she sustained when her vehicle was struck by a vehicle operated by defendant. The accident occurred when plaintiff made a left turn in front of defendant's oncoming vehicle, which was traveling in a westerly direction in the right lane of Niagara Falls Boulevard. We conclude that Supreme Court erred in denying defendant's motion insofar as it sought in the alternative summary judgment dismissing the complaint. Defendant met her initial burden of establishing that she had the right-of-way, that she was operating her vehicle in a lawful and prudent manner, and that there was nothing she could have done to avoid the accident (see Heltz v. Barratt, 115 A.D.3d 1298, 1299, 983 N.Y.S.2d 160 [4th Dept. 2014], affd 24 N.Y.3d 1185, 3 N.Y.S.3d 757, 27 N.E.3d 471 [2014] ; George v. Cerat, 118 A.D.3d 1475, 1476, 988 N.Y.S.2d 808 [4th Dept. 2014] ; Lescenski v. Williams, 90 A.D.3d 1705, 1705–1706, 935 N.Y.S.2d 828 [4th Dept. 2011], lv denied 18 N.Y.3d 811, 945 N.Y.S.2d 645, 968 N.E.2d 1001 [2012] ; see also Vehicle and Traffic Law § 1141 ).Contrary to plaintiff's contention, she failed to raise an issue of fact (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). Viewing the evidence in the light most favorable to plaintiff (see Pacino v. Lewis, 147 A.D.3d 1525, 1526, 47 N.Y.S.3d 208 [4th Dept. 2017] ), we conclude that the record establishes that plaintiff made a left turn in front of defendant's oncoming vehicle, which was only four car lengths away from the intersection and traveling at the speed limit of 40 miles per hour. At that speed and distance, defendant entered the intersection with insufficient time to take evasive action to avoid the collision (see Koenig v. Lee, 53 A.D.3d 567, 568, 862 N.Y.S.2d 373 [2d Dept. 2008] ; Dawley v. McCumber, 48 A.D.3d 1270, 1271, 850 N.Y.S.2d 807 [4th Dept. 2008] ; Lucksinger v. M.T. Unloading Servs., 280 A.D.2d 741, 742, 720 N.Y.S.2d 272 [3d Dept. 2001] ). Thus, defendant's vehicle was so close to the intersection as to constitute an immediate hazard to the left-turning plaintiff, and plaintiff was therefore required to yield the right-of-way to defendant (see Vehicle and Traffic Law § 1141 ).
In addition, plaintiff's assertion that the traffic light facing her vehicle had changed from green to yellow just before she started to make her left turn does not raise a question of fact inasmuch as a yellow light would not deprive defendant of the right-of-way and confer it upon plaintiff (see id. ). Plaintiff's further assertion that the traffic light facing defendant's vehicle might have been red by the time plaintiff executed her left turn, thereby depriving defendant of the right-of-way, is raised for the first time on appeal, and it is therefore not properly before us (see Rose v. Leberth, 128 A.D.3d 1492, 1493, 8 N.Y.S.3d 819 [4th Dept. 2015] ; Garza v. Taravella, 74 A.D.3d 1802, 1803, 905 N.Y.S.2d 392 [4th Dept. 2010] ). In any event, there is no proof in the record that the traffic light was red, and thus plaintiff's contention is based solely on speculation (see Limardi v. McLeod, 100 A.D.3d 1375, 1376, 953 N.Y.S.2d 762 [4th Dept. 2012] ; Maloney v. Niewender, 27 A.D.3d 426, 427, 812 N.Y.S.2d 585 [2d Dept. 2006] ).
Finally, we reject plaintiff's contention that there is a question of fact whether defendant was negligent by being inattentive to the intersection and not seeing plaintiff's vehicle until just before the collision. Inasmuch as defendant was entitled to anticipate that plaintiff would yield the right-of-way, the fact that defendant did not notice plaintiff's vehicle until it turned in front of her does not raise a question of fact whether defendant was negligent (see George, 118 A.D.3d at 1476, 988 N.Y.S.2d 808 ; Limardi, 100 A.D.3d at 1375–1376, 953 N.Y.S.2d 762 ; Pomietlasz v. Smith, 31 A.D.3d 1173, 1174, 818 N.Y.S.2d 709 [4th Dept. 2006] ).