Mazurczak v Smith

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Mazurczak v Smith 2017 NY Slip Op 33501(U) May 23, 2017 Supreme Court, Erie County Docket Number: Index No. 2015-805555 Judge: Donna M. Siwek Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 805555/2015 FILED: ERIE COUNTY CLERK 06/08/2017 11:30 AM NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 06/08/2017 SUPREME COURT CHAMBERS ·sTAiE OF NEW YORK Don~a M. Slwet $LlfWIII• Ccn:.,,t_Jusliff. Kashorina a. AGlldl, Conflcl•11611 Law-Cl.ark. Ann_ If. liftllz. Sec:retiluy _· (1'1.&I ~ • l'aa : (711) 845-7$112 May 23, 2017 Carl Morgan, Esq. Alyss.a Jordan.Esq. 85Main St. Rupp s·aase Pfalzgraf. et al 1600 Liberty BJdg. Hamburg. NY 14075 Buffalo, NY 14202 cart W. Morgan, PC Re; Ma~urczak, Bernardy Smith. iason; Natures Pride, LLC; County of Erie; To:Wi.tof North Collins lndex No. 2015-805555. · Memorandum Decision Dear Counselors: _ The GQµrfhas .cohsldered the remaining motion for sum111aryjudgm~nt in this matter btough,t by ~e :defendants Jaso~ M. S~ith and Natures Pride. LLC. At oral argument, the Court granted the-motions made on behalf of the-defendants -Cqunty of Erie and Town- of North. Collins. This action arises out of a .motor vehicle- accident whi•ch occurred- on February 28, 2014 at the intersection of New Oregon Road .and G®esee' Road at approximately l 2,:20 p.m. Defendant Smith was operating a 2006 Ford d~p ·truck in ·th.e course of his employment with Natures Pnde, LLC. There is no stop-slgn or traffic control device·controlling travel on Genesee Road afits intersection with New Oregon Road. There is- a stop sign on New Oregon Rdad at its intersection with Genesee Road. Accordingto the·plaintiff'-s testimony, he brought bis-vehicle to a stop at the stop sign and was stopped for .tpp'roxiina.~ly one minute. He saw two cars traveling on Genesee Road in each .direction proceed through tlle intersection during that_ time. Defendant S1nitb v,,a:s prQ~ding on Gciiese.e Road~ where-th~ speed limit is 55 miles per hour. Smith was driving between 50 and 55 miles per hour, -and as he approached the intersection~ he saw the plaintiffs vehkJe moving toward the stop sign.. Because he was not sure: whether the plaintiffs vehicle was. goi1;1g to stop,. he slowed down to approximat~ly 3:S n.iiies per hour. When he was approximately 25: yards from the m~section, Sm:ith_sa~ the _pl8:inti·ff's vehi.;:le was stopped. As Srni.th proceeded through the intersectio~ the plaintiff's vehicle entered the intersection. Smith. stated thatthe plainiiff' s vehicle "ju(!.t shot right -oui" .. In an effort to react, and believing that ·the plaintiff entered the intersectio_n to turn tight on Gen~ee Road fro.m New ~gon Road. Smith .turned to the .left and slamnied on his· brakes causing-his vehicle to skid. MaiUrczak testified that he saw Mr: Si:ni.thi s vehicle "at the_la&t [* 1] 4 of 6 FILED: ERIE COUNTY CLERK 06/08/2017 11:30 AM NYSCEF DOC. NO. 83 INDEX NO. 805555/2015 RECEIVED NYSCEF: 06/08/2017 Memorandum De<:ision May 23,2017 second". The:·plaintiffwas-1icketed for violation ofNew York Vt;hicle and TrafficLaw § l 142(a), failure to yield, A motorist, aware of the presence ofa·stop sign on a subordinate highway, is entitled to assume that the driver on t.lw· subordinate highway will stop. See. NYP:Jl 2:80A. A driver has no duty to watch. for and avoid a driver who might fail to stop or proceed with due caution at a stop sign. Doxtader v. Janszuk, 294 A.D.2d 859 (41~ Dept. 2002). •·It is well settled that a driver who has the right of way is entitled to anticipate that other vehicles will obey the traffic laws that require them to yield." Rogers v. Edelman, 79 A.D.3d 1803 (4 th Dept. 2010); Doxta(/er, s,upra. We find that the defendants Smith and Natures Pride have met their initial burden on this motion for summary judgment by establishing as..a matter oflaw that the sole proximate cause of the accident was the plaintiffs failure to yield the right of way to the Smith truck. Rogers. supra. Defendant Smith saw the plaintiff's vehicle stopped -at the intersection, and he was entitled to anticipate that the plaintiff's vehicle wou,ld remain stopped, and asswne that he had the right of way and could proceed through the intersection. We-.find that the plaintiffhasfailed to raise a triable issue of fact and that the defendants have eStablished as a matter oflaw that they rree from fault in the occurrence ofthe accident. Roger$, supra. We note that in meeting their initial burden, the defendants established that the plaintiff"s vehicle suddenly enter\¾i the intersection and there was nothing that Smith could do to avoid the collision. Hillman v. Eich, 8 A.D.3d 989 (4th Dept. 2004). Here, the defendants established as a matter o_flaw thatthe p1aintiff was negligent in failing to se.e that w.hich,. under the circumstances, he should ·have seen in crossing in front of the detendant'-s vehicle when it was hazardous to do so. Hillman, supra. As the driver with the right of\vay~ defendant Smith was erititied to anticipate that the plaintiff would obey the stop sign and pertinent traffic laws requiring him to yield the right of way to the Smith vehic]e. Additionally~ we note that the plaintiff has failed to offer any evidence that as he proceeded through the intersection, Smith had any time to. take evasive action. See, Miglionico v, LeRoy Holdings Co., Inc,. 78 A.D.3d 1306 (4 1h Dept 2010). Plaintiff's testimony that h~ observed the Smith vehicle traveling between 65 and 70 miles per hour just prior to the collision iS. unavailing given that he testified that he ~w the Smith vehicle "at the last second". Plaintiff also tei;;tified that he could not .see Mr. Smith's vehicle prior to the impact, because there is a "hidden spot" in Genesee Road; however,. this is inconsistent with his. testimony that he saw two cars traveling in ~cq_ direction prior to the accident. Finally, in the absence of an expert's affidavit as to visibility and/or the speed ofthe defendant's vehicle. we find that the plaintiff has failed to raise a triable issue of fact as to the negligence of Smith. · . As the plaintiff has failed to·raise a triable issue of fact as to Smith's alleged negJigence, Smith and Nature Prides' motion for summary judgment dismissing the complaint as against them 2 [* 2] 5 of 6 INDEX NO. 805555/2015 FILED: ERIE COUNTY CLERK 06/08/2017 11:30 AM NYSCEF DOC. NO. 83 ... 1 " RECEIVED NYSCEF: 06/08/2017 -· Memorarn;h,m Decision May 23~2017 I\. I \ I I I'' J_ { ' cc:- ThQmJ1$ Navarro, Jr~. Esq. Erie-County Dept. ofLaw 95 Franklin St., St~. i<,OO Buffalo~ NY 14202 Thomas Lewandowski, Esq. W!;:bstet Szanyi 1 LLP 1400 Liberty Bldg. Buffalo, NY 14202 3 [* 3] 6 of 6

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