Plaintiffs commenced the instant action seeking recovery for injuries sustained by Monica [*2]Russo-Martorana (hereinafter plaintiff) in an automobile collision which occurred at a three way intersection. Defendant Town of Lloyd has moved for summary judgment dismissing the complaint and all cross claims against it on the grounds that the Town did not breach any duty to plaintiff, and that if it did, any such breach was not the proximate cause of the accident.

Summary judgment is a drastic remedy which should not be granted unless it is clear that there are no triable issues of fact (see Andre v Pomeroy, 35 NY2d 361, 364 [1974]). "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). When seeking dismissal of a cause of action, a party must submit evidence which negates any meritorious cause of action encompassed by the pleadings (Franceschi v Consolidated Rail Corp., 142 AD2d 915 [1988]; see also Hirsh v Bert's Bikes and Sports, 227 AD2d 956 [1996]; Wilder v Rensselaer Polytechnic Inst., 175 AD2d 534 [1991]). It is only when the movant has established a right to judgment as a matter of law that the burden shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of material fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). The party opposing the motion will be given the benefit of every reasonable inference (see Boyce v Vazquez, 249 AD2d 724, 726 [1998]; Simpson v Simpson, 222 AD2d 984, 986 [1995]).

The subject intersection forms a "Y" or fork where Clearwater Road ends at Bellevue Road. Bellevue Road runs north and south, while Clearwater Road runs east and west. The portion of Bellevue Road north of the intersection shall be designated as Bellevue North, while that portion south of the intersection shall be designated Bellevue South. Bellevue North may be considered the base of the "Y," while Bellevue South would be the upper left arm of the "Y" with Clearwater Road forming the upper right arm. Notwithstanding the fact that Bellevue North and South have the same name, Bellevue South is controlled by a stop sign, while neither Bellevue North nor Clearwater Road have any traffic controls. Moreover, the single picture provided to the Court, as well as the testimony of the Town's Highway Superintendent, indicate that the flow of the road is continuous and relatively straight from Bellevue North to Clearwater Road, rather than from Bellevue North to Bellevue South. Bellevue South joins the other two roads at a distinct angle. To make matters more complicated, the Clearwater-Bellevue North roads form a reverse "S" curve, with Bellevue South joining the road just where the direction of the curve changes in the middle of the "S." These curves limit the sight distance for traffic approaching the intersection from either Bellevue North or Clearwater Road. The Highway Superintendent testified that Bellevue Road is the main road, with Clearwater Road being the secondary. However, no factual basis for such opinion was stated, and the single photograph submitted appears to indicate that the roads are of equivalent construction and width.

The accident occurred when plaintiff approached the intersection from Clearwater Road, intending to continue through the intersection onto Bellevue North. Defendant Theophilakos was driving southbound on Bellevue North, intending to continue south on Bellevue South. Defendant Theophilakos attempted to make the left turn onto Bellevue South immediately in front of plaintiff, resulting in the collision. Defendant Theophilakos was ticketed for drinking and driving offenses and pleaded guilty to speed not reasonable and prudent. Defendant Town contends that it met its duty of care as the roads were reasonably safe for people who obey the rules of the road, citing [*3]Tomassi v Town of Union, (46 NY2d 91 [1978]), and further that even if it breached such duty, the breach was not a proximate cause of the accident, citing Owens v Campbell, (16 AD3d 1000 [2005]), Shevalier v Bentley, (268 AD2d 622 [2000]) and Howard v Tylutki, (305 AD2d 907 [2003]).

All of such cases are clearly distinguishable. In Tomassi, plaintiff contended that a roadside drainage ditch made the road dangerous. However, the accident occurred on a straight and level stretch of roadway of more than sufficient width to allow safe passage of vehicular traffic. The accident was caused by one driver's excessive speed and the other driver's inattentiveness. The Court found that the road was reasonably safe.

The instant case involves an intersection with limited sight distances and conflicting theories of who should have the right of way. The Highway Superintendent stated that Bellevue North to Bellevue South constituted the main highway, and further opined that a driver proceeding southbound on Bellevue North intending to proceed onto Bellevue South would have the right of way over a driver approaching the intersection on Clearwater Road. However, the "rules of the road" are not governed by the name of the street. Vehicle and Traffic Law § 1141 provides that a vehicle turning left within an intersection must yield the right of way to a vehicle approaching from the opposite direction. The evidence of the physical configuration of the roads submitted on the instant motion indicates that the roadway from Clearwater Road to Bellevue North appeared to constitute the through highway, with Bellevue South entering from the side. Continuing southbound on Bellevue Road through the intersection would entail making a left turn across through traffic. The absence of any traffic control clarifying what "rules of the road" should be followed, coupled with the limited sight distances, could be found to constitute a dangerous condition. Indeed, even the Highway Superintendent admitted that it was possible that the intersection was potentially dangerous. Accordingly, the Court can not find that, as a matter of law, the intersection was reasonably safe for those who obey the rules of the road (see Alexander v Eldred, 63 NY2d 460, 467-469 [1984]).

It further appears that the defendant Town did not engage in any reasonable study with respect to the safety of the intersection. The Highway Superintendent testified that he only considered the safety of an intersection if he received a complaint. He had no idea why there was a stop sign controlling Bellevue South. Rather he stated only that it had been there when he took office. He made no independent study or investigation of the safety of the intersection. Such facts certainly would not preclude a finding of liability against the Town (see Alexander v Eldred, 63 NY2d at 465-467).

Moreover, the fact that both drivers were familiar with the nature of the intersection does not preclude liability. This is not an issue involving an alleged failure to warn of a known physical condition such as a curve (cf. Howard v Tylutki, 305 AD2d at 908). Rather, the absence of any traffic controls could have led to inconsistent beliefs as to which vehicle would have the right of way, regardless of how familiar the driver was with the roads - consider the Highway Superintendent's belief as to the right of way. It also can not be determined that the fact that defendant Theophilakos had had three or four beers earlier in the day and was proceeding at approximately five miles per hour over the speed limit constituted the sole proximate cause of the accident. Defendant Theophilakos' speed was not 30 miles per hour over the limit nor had he consumed 18 to 24 beers prior to driving off the road into a tree (cf. Shevalier v Bentley, 268 AD2d at 624). The accident also did not result from a driver crossing over the centerline from mere [*4]inattention (cf. Owens v Campbell, 16 AD3d at 1002). It would be pure speculation to assume that defendant Theophilakos would have ignored a stop sign controlling Bellevue North. Moreover, if plaintiff's passage on Clearwater Road had been controlled by a stop sign, it is likely that she would have been able to avoid the accident. As such, defendant Town has not shown that its alleged negligence could not have been a proximate cause of the accident.

It is therefore determined that defendant Town has failed to meet its burden of conclusively establishing the absence of any liability for the subject accident.

Accordingly, it is

ORDERED that the motion for summary judgment dismissing the complaint and all cross claims is hereby denied.

This shall constitute both the decision and order of the Court. All papers, including this decision and judgment, are being returned to the attorney for plaintiffs. The signing of this decision and order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that section relating to filing, entry and notice of entry.

SO ORDERED!

ENTER.

Dated:January, 2007

Troy, New York

Henry F. Zwack

Acting Supreme Court Justice