Ellsworth v. Rubio

204 A.D.3d 978

167 N.Y.S.3d 521

John ELLSWORTH, Jr., plaintiff-respondent,

v.Angel E. RUBIO, et al., appellants,Jorge Orlando Muy-Angamarca, defendant-rspondent.

2020–02014

Index No. 717411/17

Supreme Court, Appellate Division, Second Department, New York.

Argued—February 18, 2022

April 27, 2022

Denis J. Kennedy, Garden City, NY (Lorraine M. Korth of counsel), for appellants.

Salerno & Goldberg, P.C., Deer Park, NY (Allen Goldberg of counsel), for plaintiff—respondent.

Cheven Keely & Hatzis, New York, NY (Thomas Torto of counsel), for defendant—respondent.

BETSY BARROS, J.P., CHERYL E. CHAMBERS, JOSEPH J. MALTESE, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Angel E. Rubio and Noemi Raquel Rubio appeal from an order of the Supreme Court, Queens County (Pam Jackman Brown, J.), entered February 7, 2020. The order, insofar as appealed from, denied those defendants’ motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them and granted that branch of the plaintiff's cross motion which was for summary judgment on the issue of liability insofar as asserted against them.

ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs, the motion of the defendants Angel E. Rubio and Noemi Raquel Rubio for summary judgment dismissing the complaint and all cross claims insofar as asserted against them is granted, and that branch of the plaintiff's cross motion which was for summary judgment on the issue of liability insofar as asserted against the defendants Angel E. Rubio and Noemi Raquel Rubio is denied.

On January 18, 2017, the plaintiff allegedly was injured when a vehicle in which he was a passenger was involved in a two-car collision at the intersection of 20th Avenue and a service road for the Whitestone Expressway. The plaintiff was a passenger in a taxi operated by the defendant Jorge Orlando Muy–Angamarca, which collided with a vehicle operated by the defendant Noemi Raquel Rubio (hereinafter Rubio) and owned by the defendant Angel E. Rubio (hereinafter together the Rubio defendants). Prior to the accident, Muy–Angamarca's vehicle was driving in the right lane of the three-lane service road for the Whitestone Expressway, which was for right turns only, and Rubio's vehicle was driving in the middle lane, from which drivers could either go straight or make a right turn. At the intersection, the vehicles collided when Rubio made a right turn from the middle lane, and Muy–Angamarca's vehicle continued going straight through the intersection from the right lane. Rubio testified at her deposition that at the time of the impact, about three-quarters of her vehicle was already turned onto 20th Avenue.

The plaintiff commenced this action to recover damages for personal injuries against Muy–Angamarca and the Rubio defendants. Thereafter, the Rubio defendants moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them, and the plaintiff cross-moved for summary judgment on the issue of liability. In an order dated February 7, 2020, the Supreme Court, inter alia, denied the Rubio defendants’ motion and granted that branch of the plaintiff's cross motion which was for summary judgment on the issue of liability insofar as asserted against the Rubio defendants. The Rubio defendants appeal.

" ‘A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident’ " ( Jeong Sook Lee–Son v. Doe, 170 A.D.3d 973, 974, 96 N.Y.S.3d 302, quoting Boulos v. Lerner–Harrington, 124 A.D.3d 709, 709, 2 N.Y.S.3d 526 ). "[A] driver who has the right-of-way is entitled to anticipate that other drivers will obey traffic laws that require them to yield" ( Cruz v. DiSalvo, 188 A.D.3d 986, 987, 135 N.Y.S.3d 447 ). Further, " ‘[a]lthough a driver with a...