Michel v Olibrice

[*1] Michel v Olibrice 2007 NY Slip Op 52304(U) [17 Misc 3d 137(A)] Decided on November 29, 2007 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 29, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : WESTON PATTERSON, J.P., GOLIA and BELEN, JJ
2006-2173 K C.

Rio Michel, Respondent,

against

Sandra R. Olibrice, Appellant, -and- GEICO Insurance Co., Defendant.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Bernard J. Graham, J.), entered February 24, 2006. The judgment, insofar as appealed from, after a nonjury trial, awarded plaintiff the sum of $12,437 as against defendant Sandra R. Olibrice.

Judgment, insofar as appealed from, reversed without costs and judgment directed to be entered in favor of defendant Sandra R. Olibrice dismissing the complaint as against her.

Plaintiff commenced the instant action to recover for damages sustained to his vehicle as a result of a motor vehicle accident. The evidence adduced at trial established that while defendant Sandra R. Olibrice (appellant) was waiting at an intersection to make a left turn, the driver of plaintiff's vehicle, who was traveling directly behind appellant, attempted to pass her on the left side by crossing over the double yellow line into the opposing lane of traffic. Although the court below stated in its decision in favor of plaintiff that appellant did not testify that she had turned on her left turn signal, in fact, the record reveals that appellant testified that she had her left turn signal on for approximately one minute prior to the accident. The driver of plaintiff's vehicle testified that the reason that she passed appellant's vehicle on the left side was that there were other vehicles in the right lane making a right turn and the plaintiff was in the left lane and was not moving. [*2]

It is well settled that "a driver who crosses over a double yellow line into opposing traffic, unless justified by an emergency not of the driver's own making, violates the Vehicle and Traffic Law and is guilty of negligence as a matter of law (see Vehicle and Traffic Law § 1126 [a]; Foster v Sanchez, 17 AD3d 312, 313; Gadon v Oliva, 294 AD2d 397; Haughey v Noone, 262 AD2d 284)" (Sena v Negron, 38 AD3d 516, 518 [2007]). Upon a review of the record, we are of the opinion that the action taken by the driver of plaintiff's vehicle, to wit, crossing over the double yellow line to pass appellant's vehicle on the left side, was unjustified under the circumstances and was the sole proximate cause of the subject motor vehicle accident (see id.; O'Connor v Lopane, 24 AD3d 426 [2005]). Accordingly, the judgment is reversed and plaintiff's complaint dismissed as against defendant Sandra R. Olibrice.

Weston Patterson, J.P., Golia and Belen, JJ., concur.
Decision Date: November 29, 2007