ROSE, SUSAN E. v. LEBERTH, KIM A. , 8 N.Y.S.3d 819 ( 2015 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
504
CA 14-01456
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND DEJOSEPH, JJ.
SUSAN E. ROSE, PLAINTIFF-APPELLANT,
V MEMORANDUM AND ORDER
KIM A. LEBERTH, DEFENDANT-RESPONDENT.
BRENNA, BRENNA & BOYCE, PLLC, ROCHESTER (ROBERT L. BRENNA, JR., OF
COUNSEL), FOR PLAINTIFF-APPELLANT.
OSBORN, REED & BURKE, LLP, ROCHESTER (MICHAEL A. REDDY OF COUNSEL),
FOR DEFENDANT-RESPONDENT.
Appeal from an order of the Supreme Court, Monroe County (Thomas
A. Stander, J.), entered May 5, 2014. The order granted the motion of
defendant for summary judgment and dismissed the complaint.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for
injuries she sustained when the motor vehicle she was operating
collided with a vehicle operated by defendant on Mt. Hope Avenue in
the City of Rochester. At the time of the accident, plaintiff was
attempting to make a left-hand turn out of a parking lot onto Mt. Hope
Avenue. She was waiting for a UPS truck to make a left-hand turn from
the roadway into the parking lot and, as the UPS truck turned into the
parking lot, plaintiff exited the parking lot onto Mt. Hope Avenue and
collided with defendant’s vehicle, which, unseen by plaintiff, was
coming from plaintiff’s left.
We conclude that Supreme Court properly granted defendant’s
motion for summary judgment dismissing the complaint. “It is well
settled that a driver ‘who has the right[-]of[-]way is entitled to
anticipate that [the drivers of] other vehicles will obey the traffic
laws that require them to yield’ ” (Lescenski v Williams, 90 AD3d
1705, 1705, lv denied 18 NY3d 811). Because plaintiff was entering
the roadway from a parking lot, she was required to yield the right-
of-way to defendant’s vehicle regardless of whether it was in the curb
lane, as defendant testified at her deposition, or in the center turn
lane, as plaintiff asserts (see Vehicle and Traffic Law § 1143; Van
Doren v Dressler, 45 AD3d 1366, 1366-1367). Moreover, in support of
her motion, defendant established that she was traveling at or below
the posted speed limit and did not otherwise negligently operate her
vehicle. Defendant thus met her initial burden on the motion “by
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CA 14-01456
establishing as a matter of law ‘that the sole proximate cause of the
accident was [plaintiff’s] failure to yield’ ” the right-of-way to her
(Guadagno v Norward, 43 AD3d 1432, 1433), and in response plaintiff
failed to raise an issue of fact (see generally Zuckerman v City of
New York, 49 NY2d 557, 562). Plaintiff’s contention that defendant
violated Vehicle and Traffic Law § 1126 is raised for the first time
on appeal and therefore is not properly before us (see Ciesinski v
Town of Aurora, 202 AD2d 984, 985).
Entered: May 8, 2015 Frances E. Cafarell
Clerk of the Court