Stephens v Elrac, Inc.

Stephens v Elrac, Inc. 2012 NY Slip Op 07779 Decided on November 15, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 15, 2012
Friedman, J.P., Catterson, Renwick, DeGrasse, Román, JJ.
8594 401262/08

[*1]Jimmie Stephens, Plaintiff-Respondent,

v

Elrac, Inc., et al., Defendants-Respondents, James Roth, et al., Defendants-Appellants. [And Another Action]




Francine Scotto, Staten Island, for appellants.
Hach & Rose, LLP, New York (Michael A. Rose of counsel),
for Jimmie Stephens, respondent.
Carman, Callahan & Ingham, LLP, Farmingdale (Michael M.
Burkart of counsel), for Elrac, Inc. and Jeffrey Campbell,
respondents.
Brand Glick & Brand, P.C., Garden City (Andrew Federman of
counsel), for Glotel, Inc., respondent.

Order, Supreme Court, New York County (George J. Silver, J.), entered June 21, 2011, which, insofar as appealed from, denied the Roth defendants' cross-motion for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

This action for personal injuries arises from a motor vehicle accident that occurred when defendant, James Roth, the driver of one of the vehicles involved in the accident, collided with a vehicle driven by defendant Jeffrey Campbell, in which plaintiff was a passenger. Campbell was in the process of making an illegal U-turn when Roth, who was traveling on the same road and had the right of way, collided with his car.

Although making an illegal U-turn is a violation of the Vehicle and Traffic Law (see Vehicle and Traffic Law § 1128[a]; § 1143), triable issues of fact exist as to whether defendant Roth was negligent in failing to avoid the accident and speeding. Roth testified that he did not see Campbell's car until just before impact yet he also testified that he had a clear, unobstructed view of the road. As such, there is a question of fact regarding whether Roth was negligent in failing to observe what should have been observed. In addition, plaintiff testified that Roth admitted that he could not stop before the accident and an individual who witnessed the accident testified that Roth was speeding, at a rate of 40 miles per hour, after having sped up to make a traffic light.

THIS CONSTITUTES THE DECISION AND ORDER [*2]
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 15, 2012

CLERK