Opinion
268 CA 22-00814
06-30-2023
Philip E. GRACZYK, Plaintiff-Appellant, v. Christina M. ALLEN, Defendant-Respondent.
CANTOR, WOLFF, NICASTRO & HALL LLC, BUFFALO (RICHARD HALL, IV, OF COUNSEL), FOR PLAINTIFF-APPELLANT. RIVKIN RADLER LLP, UNIONDALE (CHERYL F. KORMAN OF COUNSEL), FOR DEFENDANT-RESPONDENT.
CANTOR, WOLFF, NICASTRO & HALL LLC, BUFFALO (RICHARD HALL, IV, OF COUNSEL), FOR PLAINTIFF-APPELLANT.
RIVKIN RADLER LLP, UNIONDALE (CHERYL F. KORMAN OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: SMITH, J.P., LINDLEY, CURRAN, OGDEN, AND GREENWOOD, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied and the complaint is reinstated.
Memorandum: Plaintiff commenced this action to recover damages for injuries he sustained when the motorcycle he was operating collided with defendant's vehicle while defendant was in the process of making either a left-hand turn or a U-turn. Prior to the collision, plaintiff had been traveling behind defendant's vehicle, in the same direction. Defendant moved for summary judgment dismissing the complaint. Supreme Court granted the motion, and plaintiff appeals. We reverse.
Defendant failed to meet her initial burden on the motion because her own submissions raise triable issues of fact (see generally Winegrad v. New York Univ. Med. Ctr. , 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ). In particular, we conclude that there are triable issues of fact whether defendant was negligent in manifesting an intent to turn right by activating her right blinker and pulling to the right side of the lane before abruptly beginning to turn left and whether defendant thereby caused plaintiff to strike defendant's vehicle as defendant attempted to complete her turn (see Gawera v. Scrogg , 4 A.D.3d 760, 760, 771 N.Y.S.2d 766 [4th Dept. 2004] ; Karram v. Cirillo , 281 A.D.2d 946, 946, 722 N.Y.S.2d 673 [4th Dept. 2001] ; see also Amerman v. Reeves , 148 A.D.3d 1632, 1634, 50 N.Y.S.3d 717 [4th Dept. 2017] ).