Centofanti v. Cassidy

265 A.D.2d 830, 695 N.Y.S.2d 639, 1999 N.Y. App. Div. LEXIS 9876

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 1, 1999
• Status: Published

Opinions

—Order affirmed without costs. Memorandum: Supreme Court properly granted the motion of defendants William J. Cassidy, Lynne Subjeck, individually and doing business as On-Line Auto Connection, and Steven J. Nesbitt for summary judgment dismissing the complaint against them. The evidence is uncontroverted that plaintiffs decedent stopped his vehicle at the flashing red light at Route 425 in the Town of Cambria, but then proceeded through the intersection, directly into the path of a tractor-trailer traveling on Route 104 toward the flashing yellow light. The tractor-trailer, operated by Cassidy, was 50 to 100 feet from the intersection when decedent entered the intersection. Subjeck, who owned the tractor, Nesbitt, who owned the trailer, and Cassidy established that Cassidy’s conduct in attempting to avoid the collision was reasonable under the circumstances and that the collision was caused solely by the acts of decedent (see, Ryan v Ratchuck [appeal No. 1], 221 AD2d 1021). Plaintiff failed to offer any proof in admissible form that Cassidy could have avoided the collision (see, Ryan v Ratchuck, supra; see generally, Zuckerman v City of New York, 49 NY2d 557, 562).

The court also properly granted the motion of defendant Keeler Construction Co., Inc. (Keeler) for summary judgment dismissing the complaint against it. Keeler established that, contrary to plaintiffs contention, there was no shed located at the intersection, and plaintiff failed to raise an issue of fact whether decedent’s view of oncoming traffic was obstructed (see generally, Zuckerman v City of New York, supra, at 562).

All concur except Hayes, J., who dissents in part and votes to modify in the following Memorandum.