Defendants John A. Washington and Karen A. Washington, (hereinafter movants) move under motion sequence number two for an order dismissing the complaint against them pursuant to CPLR §3212. Plaintiff opposes the motion.

On September 5, 2006, plaintiffs commenced this lawsuit to recover for injuries allegedly sustained as the result of a motor vehicle accident on August 19, 2006. On October 26, 2006, issue was joined by service of defendants' answer and cross claim. Co-defendant Palewicz has not answered.

The movants' papers consist of an attorney's affirmation in support and nine exhibits. Exhibit A is a copy of the summons and complaint. Exhibit B is the movants' verified answer and cross claim. Exhibit C is Justice Bayne's order dated November 30, 2007, extending time for the movants to file a summary judgment motion. Exhibit D is plaintiff's verified bill of particulars. Exhibit E is the deposition transcript of defendant Karen Washington. Exhibit F is the deposition transcript of co-defendant Jamie Palewicz. Exhibit G is the deposition transcript of the plaintiff Mee Chyi Man. Exhibit H is the deposition transcript of plaintiff Ivanna Goldenberg. Exhibit I is a police accident report.

Plaintiffs opposition consists of an affirmation of their counsel and four exhibits. Exhibit A is a response to demands and response to preliminary conference order with annexed [*2]photographs. Exhibit B is an affidavit of professional engineer, Peter Pomeranz. Exhibit C is a copy of corrected testimony of defendant Karen Washington's examination before trial. Exhibit D is an aerial photograph of the accident scene.

The movants replied to the opposition with an affirmation of counsel and three annexed aerial photographs.

On May 18, 2007, Karen A. Washington testified, in sum and substance, that she was the operator of a vehicle traveling north on the West Side highway in New York County. While traveling north, the vehicle traveling southbound and operated by defendant Palewicz made a left turn across the northbound traffic. On May 18, 2007, both plaintiffs were deposed. Plaintiff Mee Chyi Man's testimony confirmed that the vehicle operated by co-defendant Palewicz was making a left turn across the northbound traffic at the time of the collision. Plaintiff Goldenberg testified that she was lying on the backseat of the vehicle during the accident. On May 18, 2007, co-defendant Jamie Palewicz was deposed. Her testimony indicated that she made a left turn but did not see movants' vehicle at the time the turn was made.

On a motion for summary judgment, the movant must establish his or her cause of action or defense sufficient to warrant a court to direct judgment in his or her favor as a matter of law (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). The party opposing the motion must then produce proof in admissible form sufficient to necessitate a trial as to material issues of fact (Laecca v. New York University, 7 AD3d 415 [1st Dept. 2004]; see also Rebecchi v. Whitmore, 172 AD2d 600 [2nd Dept. 1991]). Furthermore, to grant a motion for summary judgment, it must clearly appear that no material issue of fact is presented. The burden upon the court when deciding this type of motion is not to resolve issues of fact or credibility, but rather to determine whether indeed any such issue of fact exists (Barr v. County of Albany, 50 NY2d 247 [1980]; see also Kolivas v. Kirchoff, 14 AD3d 493 [2nd Dept 2005]).

The undisputed deposition testimony of all parties establishes that Karen A. Washington was the operator of a vehicle traveling north on the West Side highway in New York County and that co-defendant Palewicz, while traveling southbound made a left turn across the northbound traffic and across the Washington's vehicle and collided with the Washington vehicle. At the time of the collision the plaintiffs were passengers in the Palewicz vehicle. There was no testimony from any party as to the speed of movants' vehicle at the time of the collision. The plaintiffs and co-defendant never saw the movants' vehicle prior to the accident.

VTL §1141 states:

The driver of a vehicle intending to turn to the left within an intersection or into an alley, private road, or driveway shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard.

It is well settled that when a driver violates Vehicle and Traffic Law §1141 and makes a left turn directly into the path of an oncoming vehicle who legally proceeded with the right of way, there is no liability on the driver of the vehicle with the right of way (see Rieman v Smith, 302 AD2d 510 [2nd Dept. 2003]). Violation of the statute is negligence per se; the failure to [*3]observe the statutory standard of care is negligence (see Elliot v City of New York, 95 NY2d 730 [2001]).

The defendant has demonstrated their entitlement to judgment as a mater of law by establishing that the co-defendant's vehicle violated VTL §1141 when it attempted to make a left turn directly into the path of oncoming traffic. Co-defendant Palewicz was negligent in failing to see that which, under the circumstances, should have been seen, and in crossing in front of movants' vehicle when it was hazardous to do so. Movants' vehicle had the right of way (see Agin v Rehfeldt, 284 AD2d 352 [2nd Dept. 2001]

Movants have shifted the burden to the plaintiff to produce proof in admissible form sufficient to necessitate a trial as to material issues of fact. The opinion of the plaintiff's expert was based on the review of photographs and the deposition testimony of the parties. The expert's affidavit is ambiguous as to whether he visited the accident scene. Because the expert's opinion was based solely upon photographs of the scene and his review of the depositions, it did not raise a triable issue of fact as to whether the co-defendant Karen Washington, was liable for causing the accident ( Rios v NYC Housing Authority, 48 AD3d 661 [2nd Dept 2008]; citing Leggio v Gearhart 294 AD2d 543 [2nd Dept. 2002]). The opinion of the purported expert in highway design and accident reconstruction as to the cause of the collision was purely speculative without adequate foundational facts, and thus, lacked sufficient probative force to constitute prima facie evidence of comparative negligence. The opinion constituted mere conclusions, expressions of hope or unsubstantiated allegations or assertions which are insufficient to satisfy the plaintiff's burden (Zuckerman v City of New York, 49 NY2d 557 [1980].

Defendants' motion for summary judgment is granted.

The foregoing constitutes the decision and order of the court.

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J.S.C.