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

703
CA 14-02109
PRESENT: SCUDDER, P.J., CARNI, SCONIERS, VALENTINO, AND WHALEN, JJ.


RICHARD E. ROLLS, CLAIMANT-APPELLANT,

                    V                             MEMORANDUM AND ORDER

STATE OF NEW YORK, DEFENDANT-RESPONDENT.
(CLAIM NO. 119923.)


LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),
FOR CLAIMANT-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (KATE H. NEPVEU OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Court of Claims (Richard E. Sise,
A.J.), entered July 22, 2014. The order denied the motion of claimant
for partial summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, and the motion is
granted.

      Memorandum: Claimant commenced this action seeking damages for
injuries he sustained when a state-owned vehicle driven by defendant’s
employee pulled out in front of him at an intersection where claimant
had the right-of-way. Claimant, who was riding a motorcycle, braked
and swerved to avoid colliding with the vehicle, and the motorcycle
tipped over. Claimant was not subject to any traffic control devices
at the intersection, but defendant’s employee was subject to a stop
sign.

     The Court of Claims erred in denying claimant’s motion for
partial summary judgment on the issue of negligence. “It is well
settled that a driver ‘who has the right[-]of[-]way is entitled to
anticipate that [the drivers of] other vehicles will obey the traffic
laws that require them to yield’ ” (Lescenski v Williams, 90 AD3d
1705, 1705, lv denied 18 NY3d 811). Here, claimant met his initial
burden on the motion by establishing as a matter of law that the sole
proximate cause of the accident was the failure of defendant’s
employee to yield the right-of-way to him at the intersection (see
Vehicle and Traffic Law §§ 1142 [a]; 1172 [a]). In support of the
motion, claimant submitted evidence demonstrating that he was
traveling at a speed of approximately 50 miles per hour in a 55 mile
per hour zone. As he approached the intersection, claimant began to
brake when he saw defendant’s employee roll forward at the stop sign.
                                 -2-                           703
                                                         CA 14-02109

Claimant released the brakes when defendant’s employee stopped at the
stop sign but, when claimant was within 25 feet of the intersection,
defendant’s employee suddenly pulled out in front of him, causing
claimant to brake, swerve, and tip over (see Guadagno v Norward, 43
AD3d 1432, 1433; Wallace v Kuhn, 23 AD3d 1042, 1043).

     In response, defendant failed to “raise[] a triable issue of fact
whether [claimant] ‘was at fault in the happening of the accident or
whether he could have done anything to avoid the collision’ ”
(Wallace, 23 AD3d at 1043). Defendant’s contention that claimant
failed to take action to avoid the accident is “ ‘based on speculation
and is insufficient to defeat a motion for summary judgment’ ”
(Liskiewicz v Hameister, 104 AD3d 1194, 1195).




Entered:   June 19, 2015                        Frances E. Cafarell
                                                Clerk of the Court
