        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

694
CA 13-02008
PRESENT: CENTRA, J.P., LINDLEY, SCONIERS, VALENTINO, AND DEJOSEPH, JJ.


SHARI GEORGE, AS MOTHER AND GUARDIAN OF JOSIAH
GEORGE, A MINOR, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

GLENN P. CERAT, DEFENDANT-RESPONDENT.


ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL),
FOR PLAINTIFF-APPELLANT.

LAW OFFICES OF DANIEL R. ARCHILLA, BUFFALO (DANIEL J. GUARASCI OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order and judgment (one paper) of the Supreme
Court, Chautauqua County (James H. Dillon, J.), entered February 1,
2013. The order and judgment, among other things, granted the motion
of defendant for summary judgment and dismissed the complaint.

     It is hereby ORDERED that the order and judgment so appealed from
is unanimously affirmed without costs.

     Memorandum: Plaintiff, as parent and natural guardian of her
son, commenced this action seeking damages for injuries he sustained
as a bicyclist when he collided with a vehicle owned and operated by
defendant. Supreme Court properly granted defendant’s motion for
summary judgment dismissing the complaint. In support of his motion,
defendant established that he was traveling at a lawful rate of speed,
had the right-of-way with respect to his vehicle and did not have an
opportunity to avoid the accident (see Lescenski v Williams, 90 AD3d
1705, 1705-1706, lv denied 18 NY3d 811). Defendant established
through the deposition testimony of several witnesses and the
affidavit of an accident reconstruction specialist that the conduct of
plaintiff’s son was the sole proximate cause of the accident (see
id.). In opposition, plaintiff failed to raise a triable issue of
fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562).
“While a driver is required to ‘see that which through proper use of
[his] . . . senses [he] . . . should have seen’ . . . , a driver who
has the right-of-way is entitled to anticipate that [a bicyclist] will
obey the traffic law requiring him . . . to yield . . . ‘[A] driver
with the right-of-way who has only seconds to react to a [bicycle]
which has failed to yield is not . . . negligent for failing to avoid
                                 -2-                             694
                                                           CA 13-02008

the collision’ ” (Vainer v DiSalvo, 79 AD3d 1023, 1024).




Entered:   June 20, 2014                       Frances E. Cafarell
                                               Clerk of the Court
