Opinion
2003-248 RI C.
Decided December 10, 2003.
Appeal by defendant Carl E. Gertz, Jr., as limited by his brief, from so much of an order of the Civil Court, Richmond County (E. Vitaliano, J.), entered January 22, 2003, as granted the motion by defendants Elena Suazo and Raul A. Suazo for summary judgment dismissing the complaint insofar as asserted against them and the cross claim.
Order unanimously affirmed with $10 costs.
PRESENT: PESCE, P.J., ARONIN and PATTERSON, JJ.
Defendant Carl E. Gertz, Jr. was involved in an automobile accident as he drove his car from the exit of a store's parking lot. Although a number of cars were stopped in the southbound lane and his view of northbound traffic was obstructed by a truck, Gertz successfully navigated his car between plaintiffs car and a truck, thereby crossing the southbound lane. However, as he began to make a left turn into the northbound lane, the front passenger side of his car was struck by a minivan driven by defendant Raul Suazo and owned by defendant Elena Suazo. As a result of the collision, Gertz's car was propelled into plaintiffs car which was stationary. During his examination before trial, Raul Suazo testified that his maximum rate of speed did not exceed the speed limit and that he did not see Gertz's car until just before the accident, at which time he, Raul Suazo, applied his brakes. After motions for summary judgment were made, the court held that Gertz was solely liable to plaintiff and dismissed the complaint insofar as asserted against the Suazo defendants, as well as Gertz's cross claim against them.
By entering the roadway and failing to yield the right of way to the Suazo vehicle, Gertz was negligent as a matter of law ( see Vehicle and Traffic Law § 1143; Klein v. Vencak, 298 AD2d 434; Batal v. Associated Univs., 293 AD2d 558; Botero v. Erraez, 289 AD2d 274; Ferrara v. Castro, 283 AD2d 392). Gertz's contention that the record contains sufficient facts to demonstrate a material triable issue as to whether he was the sole proximate cause of the accident or whether the Suazo defendants were comparatively negligent because their vehicle was speeding lacks merit ( see Klein, 298 AD2d 434; Batal, 293 AD2d 558; Botero, 289 AD2d 274; Ferrara, 283 AD2d 392). Although plaintiff testified during her examination before trial that she thought the Suazo vehicle might have been speeding, she admitted that she was uncertain as to what the speed limit was at the site of the accident. Thus, her belief concerning the speed of the Suazo vehicle was pure speculation and insufficient to overcome Raul Suazo's unequivocal testimony that he was not speeding ( see Vogel v. Gilbo, 276 AD2d 977, 979). Raul Suazo's characterization of the force of the impact as heavy is insufficient to raise a question of fact as to whether he was speeding because it is a subjective lay opinion which differed from Gertz's own characterization of the force as medium and Gertz did not proffer an expert's opinion which calculated the vehicle's speed based upon the ensuing damage ( see Sureda v. Diamonti, 300 AD2d 572; Breslin v. Rudden, 291 AD2d 471; Vogel, 276 AD2d at 979; Martino v. Triangle Rubber Co., 249 AD2d 454).