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

184
CA 13-01101
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND WHALEN, JJ.


MARY T. HELTZ, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

BRUCE S. BARRATT AND ERIE LOGISTICS, LLC,
DEFENDANTS-RESPONDENTS.
(APPEAL NO. 1.)


PERSONIUS MELBER LLP, BUFFALO (SCOTT R. HAPEMAN OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

BARTH SULLIVAN BEHR, BUFFALO (ANDREW J. KOWALEWSKI OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (John M.
Curran, J.), entered October 16, 2012 in a personal injury action.
The order granted defendants’ motion for summary judgment dismissing
the first amended complaint.

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

     Memorandum: Plaintiff commenced this negligence action seeking
damages for injuries she sustained when the vehicle in which she was a
passenger, which was operated by her husband, was struck by a truck
operated by Bruce S. Barratt (defendant) and owned by defendant Erie
Logistics, LLC. On the evening in question, plaintiff’s husband
stopped his vehicle at a stop sign on East Centerville Road where it
intersects with Route 243 in Rushford. Defendant was operating his
truck at slightly above the speed limit of 55 miles per hour on Route
243, with the right-of-way. After coming to a stop, plaintiff’s
husband moved forward a bit and then stopped again. Not observing any
oncoming traffic, plaintiff’s husband drove into the intersection,
where his vehicle was struck by defendant’s truck. There is no stop
sign or traffic control device for traffic on Route 243. In appeal
No. 1, plaintiff appeals from an order granting defendants’ motion for
summary judgment dismissing the first amended complaint and, in appeal
No. 2, she appeals from an order denying her motion for leave to
reargue and renew her opposition to defendants’ motion. With respect
to appeal No. 2, we dismiss the appeal from the order therein to the
extent that it denied leave to reargue (see Empire Ins. Co. v Food
City, 167 AD2d 983, 984), and we otherwise affirm the order in each
appeal.
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                                                         CA 13-01101

     “It is well settled that a driver who has the right-of-way is
entitled to anticipate that drivers of other vehicles will obey the
traffic laws requiring them to yield” (Malbory v David Chevrolet Buick
Pontiac, Inc., 108 AD3d 1109, 1110; see Vehicle and Traffic Law § 1142
[a]). Nevertheless, “a driver cannot blindly and wantonly enter an
intersection . . . but, rather, is bound to use such care to avoid [a]
collision as an ordinarily prudent [motorist] would have used under
the circumstances” (Strasburg v Campbell, 28 AD3d 1131, 1132 [internal
quotation marks omitted]).

     Here, we conclude with respect to the order in appeal No. 1 that
defendants met their initial burden of establishing that defendant was
operating his vehicle “ ‘in a lawful and prudent manner and that there
was nothing [he] could have done to avoid the collision’ ” (Daniels v
Rumsey, 111 AD3d 1408, 1410; see Ithier v Harnden, 13 AD3d 1204,
1205). Defendant testified that he saw plaintiff’s vehicle at the
stop sign, braked as soon as he entered the intersection, and turned
to the left “microseconds” after he braked. Despite defendant’s
efforts to avoid the accident, his truck struck the rear of
plaintiff’s vehicle on the passenger’s side. In opposition to the
motion, plaintiff failed to raise an issue of fact (see generally
Zuckerman v City of New York, 49 NY2d 557, 562). Contrary to
plaintiff’s contention, “the fact that [defendant] may have been
driving at a speed in excess of five miles per hour over the posted
speed limit . . . is inconsequential inasmuch as there is no
indication that [defendant] could have avoided the accident even if
[he] had been traveling at or below the posted speed limit” (Daniels,
111 AD3d at 1410).

     We conclude with respect to the order in appeal No. 2 that
Supreme Court properly denied that part of plaintiff’s motion for
leave to renew. It is well settled that a motion for leave to renew
must be “based upon new facts not offered on the prior motion that
would change the prior determination,” and “shall contain reasonable
justification for the failure to present such facts on the prior
motion” (CPLR 2221 [e] [2], [3]; see Blazynski v A. Gareleck & Sons,
Inc., 48 AD3d 1168, 1170, lv denied 11 NY3d 825). Here, the only
reason proffered by plaintiff for failing to submit her expert’s
affidavit in opposition to defendants’ motion is that she believed
that she had raised an issue of fact without it and that the court
would therefore deny defendants’ motion. That is not a reasonable
justification for the failure to present the affidavit on the initial
motion. As we have previously stated, a motion for leave to renew “is
not a second chance freely given to parties who have not exercised due
diligence in making their first factual presentation” (Welch Foods v
Wilson, 247 AD2d 830, 831 [internal quotation marks omitted]; see
Deutsche Bank Natl. Trust Co. v Wilkins, 97 AD3d 527, 528; Tibbits v
Verizon N.Y., Inc., 40 AD3d 1300, 1302-1303).

     All concur except WHALEN, J., who dissents and votes to reverse
in accordance with the following Memorandum: I respectfully dissent
in appeal No. 1 because this case does not involve a truly unavoidable
accident for which the grant of summary judgment would be appropriate
                                 -3-                           184
                                                         CA 13-01101

(see generally DeBrine v VanHarken, 83 AD3d 1437, 1438). I would
therefore reverse the order in appeal No. 1, deny defendants’ motion
for summary judgment, and reinstate the first amended complaint.

     Proximate cause is generally a question of fact for the jury (see
Prystajko v Western N.Y. Pub. Broadcasting Assn., 57 AD3d 1401, 1403),
and “ ‘[i]t cannot be said as a matter of law that [one] driver’s
conduct was the sole proximate cause of the accident simply because
his approach into the intersection was regulated by a stop sign
whereas no traffic control devices regulated [the other driver’s]
approach’ ” (Nevarez v S.R.M. Mgt. Corp., 58 AD3d 295, 297).

     Supreme Court relied upon Rogers v Edelman (79 AD3d 1803, 1804)
and Galvin v Zacholl (302 AD2d 965, 966-967, lv denied 100 NY2d 512)
in granting defendants’ motion for summary judgment dismissing the
first amended complaint but here, in contrast, the actions of the
driver of the vehicle in which plaintiff was a passenger were not so
sudden. Unlike someone preparing to make a left turn across oncoming
traffic in the absence of a traffic control device, or someone pulling
into an intersection to make a left turn at a green light, here, Bruce
S. Barratt (defendant) should have been alerted of a potential hazard
based on the fact that the SUV in which plaintiff was a passenger
accelerated from the stop sign and proceeded into the intersection.

     This case is factually similar to Nevarez (58 AD3d at 296-298)
and Cooley v Urban (1 AD3d 900, 900-901) in many important respects,
and I see no reason why the outcome should be any different. From the
stop sign on East Centerville Road, there is an eight-foot shoulder
followed by the single east and westbound lanes of Route 243 and then
another shoulder. There were no other cars on the road at the time of
the accident. As noted by the majority, neither plaintiff nor her
husband ever saw defendant’s tractor trailer, and plaintiff’s husband
looked both ways before gradually accelerating across the
intersection. Defendant first saw the SUV when he was between one
eighth to one quarter of a mile from the intersection. His tractor
trailer’s “black box report” indicates that defendant’s speed was
likely 64 miles per hour at that time while the speed limit on the
road on which he was traveling was 55 miles per hour. Defendant
watched the SUV the whole way and, when he was “a couple hundred feet”
away, saw the SUV accelerate from the stop sign in a standard fashion
and enter the intersection. At that point, “[a]ll [defendant] could
do was apply the brakes in anticipation of [the SUV] possibly spotting
[him] and stopping or keeping going.” Defendant turned to the left
when he realized that a collision was unavoidable; the SUV had fully
entered his lane and it appeared as though the SUV “was going to keep
going and not spot [him] at all.” Defendant did not sound his horn,
and his right front fender collided with the right rear quarter panel
of the SUV. The black box recorded that defendant applied his brakes
one second before the collision; he was traveling at a speed of 58
miles per hour.

     Because defendant observed that the SUV entered the intersection
without appearing to notice defendant from a distance of 200 feet, and
considering that the black box report contradicts defendant’s
                                 -4-                           184
                                                         CA 13-01101

testimony that he first applied his brakes when he was 200 feet away,
I conclude that there is a question of fact whether defendant used the
requisite reasonable care when proceeding into the intersection and in
attempting to avoid the collision (see Dorr v Farnham, 57 AD3d 1404,
1405-1406; Cooley, 1 AD3d at 900-901; King v Washburn, 273 AD2d 725,
726).

     A difference in a matter of seconds, or perhaps less, could have
prevented this accident. The SUV had almost made it across the
intersection and was in the westbound lane when the collision
occurred. Defendant saw the SUV accelerate from the stop sign despite
his approach, yet did not take any evasive action until one second
before impact. Even so, defendant impacted only the panel behind the
rear wheel of the SUV. Had defendant been traveling at the speed
limit, braked and/or veered sooner, the collision might have been
completely avoided. Considering the SUV’s location at the time of
impact and standard acceleration, and defendant’s understanding that
the SUV was oblivious to his approach, if defendant had sounded his
horn upon noticing the SUV accelerate the accident might have been
avoided. Defendant testified that he could only apply his brakes in
anticipation of the SUV possibly spotting him, but a trier of fact
might disagree.

     Questions of fact exist as to whether defendant should have been
traveling slower, braked and veered sooner, and/or sounded his horn
when he first observed the SUV enter the “intersection without
appearing to slow down or to look in [defendant’s] direction” (King,
273 AD2d at 726; see Deshaies v Prudential Rochester Realty, 302 AD2d
999, 1000).




Entered:   March 28, 2014                      Frances E. Cafarell
                                               Clerk of the Court
