The following papers numbered 1 to 17 were read on this motion by plaintiff JASON HAYWOOD, for an order pursuant to CPLR 3212 granting partial summary judgment in favor of the plaintiff on the issue of liability and setting the matter down for an inquest on damages:

Papers Numbered

Notice of Motion-Affidavits-Exhibits....................1 - 6

Affirmation in Opposition ..............................7 - 11

Reply Affirmation .....................................12 - 14

Plaintiff's Supplemental Affirmation...................15 - 17 _________________________________________________________________

This is a personal injury action in which plaintiff, Jason Haywood, seeks to recover damages for injuries he sustained as a result of a motor vehicle accident that occurred on March 18, 2009, at approximately 5:00 p.m., on the eastbound lanes of the south service road to the Long Island Expressway west of the intersection with Searingtown Road in Nassau County, New York.

Plaintiff claims that at the time of the accident, he was proceeding in the right lane of eastbound traffic on the south service road when the vehicle being operated by defendant Michael A. Levy changed lanes without warning, striking the plaintiff's vehicle. The plaintiff contends that as a result of the accident he sustained physical injuries including a torn rotator cuff of the left shoulder requiring arthroscopic surgery. [*2]

Plaintiff commenced an action against defendant by filing a summons and complaint on October 14, 2009. Issue was joined by service of the defendant's verified answer dated January 19, 2010. By order dated March 8, 2010, this Court granted the motion of defendant Michael Levy to consolidate the above captioned action with the action filed under Index No. 22631/09 entitled "NATHANIEL BLUE against MICHAEL A. LEVY."

Carmine J. Goncalves, Esq., counsel for plaintiff, Jason Haywood, now moves for an order pursuant to CPLR 3212(b), granting partial summary judgment in favor of plaintiff on the issue of liability and setting the matter down for an inquest on damages. In support of the motion, the plaintiff submits an affidavit from counsel, a copy of the pleadings, a copy of the plaintiff's verified bill of particulars, a certified copy of the police accident report (MV-104), and a copy of the transcript of the examinations before trial of plaintiff Jason Haywood, plaintiff's passenger, Nathaniel Blue and defendant Michael A. Levy.

The police report contains the officer's description of the accident based upon his conversations with the drivers. His report states, "MV1 (defendant) and MV2 (plaintiff) were involved in a collision. Driver 1 (defendant) stated that he was changing lanes and didn't see MV2 (plaintiff)."

In his examination before trial, taken on July 27, 2010, plaintiff, age 39, testified that at approximately 5:00 p.m. on March 18, 2009, he was driving a 14 foot delivery truck in the course of his employment with Corporate Coffee Systems. Plaintiff stated that he had finished the last delivery for the day in Manhattan and was headed back to the warehouse in Westbury, Long Island. Plaintiff exited the Expressway and was traveling on the south service road heading eastbound towards Old Westbury Road. Plaintiff testified that after he entered the service road he first proceeded in the left lane then changed to the middle lane and then moved to the right lane. He stopped for a traffic light and after the light turned green he proceeded about 50 feet in the right lane when the defendant's vehicle which was in the middle lane, one car length in front of his vehicle, moved into the right lane. The right side of the defendant's vehicle hit the plaintiff's left side. Plaintiff stated that at the time of the accident his vehicle was moving at 15 to 20 miles per hour and he only saw the defendant's vehicle move from the middle lane to the right lane a split second prior to impact.

Nathaniel Blue, Jr., age 39, the plaintiff's passenger [*3]testified at his deposition taken on September 29, 2010 that he was a supervising driver for Corporate Coffee Systems on the date of the accident. He stated that about two seconds prior to the accident he saw the front of the defendant's vehicle, a Jeep Cherokee moving from the middle lane into the right lane colliding with the driver's side of the plaintiff's vehicle. Mr. Blue stated that after the accident he approached the defendant and asked him how he was doing and the defendant stated that "I didn't see you guys." Mr. Blue stated that as a result of the accident he injured his right knee and required arthroscopic surgery to repair a torn ligament.

Defendant Michael A. Levy, age 32, was deposed on September 29, 2010. He testified that he is employed as a guard/supervisor with Liberty Protection. He entered the expressway service road from Utopia Parkway in Queens and traveled on it in an eastbound direction for 30 minutes prior to the accident. He stated that the plaintiff's vehicle was in the right lane and he was traveling in the lane next to the right lane. In describing the accident he testified that he never saw the truck that he collided with prior to the accident. He stated that he observed that a Chrysler Sebring that was in the right lane was trying to enter his lane behind his vehicle. He testified that he wanted to let that vehicle in so he moved his vehicle to the right lane to allow the vehicle behind him to get in. He stated that when he looked outside the passenger side window he saw that the lane to the right of him was empty. He stated that prior to moving his vehicle into the right lane he engaged the right directional signal. He testified that he told the police officer that he was changing lanes and he got hit. When asked if he told the police that he didn't see the other vehicle before the accident happened he answered, "I might have."

Plaintiff's counsel, argues in support of the motion for summary judgment, that the sworn testimony of Mr. Haywood and Mr. Blue indicates that Haywood was traveling lawfully in the right lane of the service road at a safe rate of speed and that he was not negligent as a matter of law. He contends that defendant Levy's negligent actions in suddenly changing lanes without warning, without signaling, and without first ascertaining that it was safe to do so was the sole proximate cause of the accident.

Counsel John J. Ficara, Esq., on behalf of the defendant, Michael A. Levy, submits his affirmation in opposition to the motion in which he asserts that notwithstanding the fact that the deposition testimony indicates that Levy moved into the right lane without seeing the plaintiff's vehicle, the deposition [*4]testimony also indicates that there is a material question of fact as to whether plaintiff Haywood was comparatively negligent for failing to see what was there to be seen by the proper use of his senses and failing to take any action to avoid the accident. Counsel argues that Levy testified that he was moving slowly to the right with his turn signal and plaintiff testified that he was conversing with his passenger and never saw defendant's vehicle cross into his lane of traffic. Counsel contends that plaintiff's testimony creates a question of fact as to what he was doing and whether he was paying attention to the road and traffic conditions before the accident.

The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position (see Zuckerman v. City of New York, 49 NY2d 557[1980]).

Upon review of the plaintiff's's motion, defendant's affirmation in opposition and the plaintiff's reply thereto, this court finds as follows:

A driver with the right of way is entitled to anticipate that the other driver will obey traffic laws that require him to yield (see Kann v Maggies Paratransit Corp., 63 AD3d 792[2d Dept. 2009]; Palomo v Pozzi, 57 AD3d 498 [2d Dept. 2009]; Berner v Koegel, 31 AD3d 591[2d Dept. 2006]; Gabler v Marley Bldg. Supply Corp., 27 AD3d 519[2d Dept. 2006]).

It is the movant's contention that defendant Levy was negligent as a matter of law in attempting to change lanes when it was not safe to do so, and in failing to yield the right of way to plaintiff's vehicle and that said negligence was the sole proximate cause of the accident. Here, plaintiff established defendant's negligence through the submission of his deposition testimony indicating that he was lawfully proceeding eastbound in the right lane of the Long Island Expressway service road traveling at a speed of 15-20 miles per hour when the defendant's vehicle abruptly entered his lane from the left lane without yielding the right of way causing an impact with the side of the plaintiff's. As the deposition testimony indicates that defendant's vehicle changed lanes without first ascertaining that the lane change could be made with safety, Levy was in violation of Vehicle and Traffic Law § 1128(a) and as such was negligent as a matter of law (see Pollack v Margolin, 84 AD3d 1341[2d Dept. 2011]; Rivera v Corbett, 69 AD3d 916 [2d Dept. 2010]; Summers v [*5]Teddy Cab Corp., 50 AD3d 671 [2d Dept. 2008]; Shuman v Maller, 45 AD3d 566 [2d Dept. 2007]; Moreback v. Mesquita, 17 AD3d 420 [2d Dept. 2005]). A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law (see Vainer v DiSalvo, 79 AD3d 1023 [2d Dept. 2010]).

However, the plaintiff failed to establish, prima facie, that the defendant's negligence was the sole proximate cause of the accident. Although the plaintiff driver had the right-of-way and was entitled to anticipate that the defendant would obey the traffic laws, the plaintiff driver who has the right-of-way has a duty to exercise reasonable care to avoid a collision with another vehicle and may be negligent when an accident occurs because the driver failed to see that which through proper use of the driver's senses he or she should have seen (see Pollack v Margolin, 84 AD3d 1341 [2d Dept. 2011]).

Here, the plaintiff testified that when he initially saw the defendant's vehicle it was a car length in front of him and did not have its turn signal on. However, he stated that he did not see defendant's vehicle move into his lane until a split second before the impact. The testimony and photographs submitted indicate that the left front of the plaintiff's vehicle came into contact with the side of the defendant's vehicle. Mr. Blue testified that he also observed the defendant's vehicle in the lane to the left of Haywood's truck and he observed the plaintiff's vehicle attempting to move into the right lane less than two seconds before the impact. Levy testified that he was traveling at 2 - 3 miles per hour and that he right lane was empty when he first attempted to make the lane change and he checked his mirror and utilized his turn signal. Thus, the conflicting nature of the testimony creates a question of fact as to whether the plaintiff had sufficient time to observe the defendant's vehicle attempting the lane change and what efforts he made to try to stop his vehicle or avoid the collision prior to the impact. Thus, the plaintiff failed to establish, prima facie, that he saw that which through proper use of his senses he should have seen and that he used reasonable care to avoid the collision (see Chang-Hoon Lee v Kew Gardens Sung Shin Refm. Church of NY, 84 AD3d 1299 [2d Dept. 2011]).

Accordingly, as the plaintiff's evidentiary submissions were insufficient to eliminate all issues regarding the facts surrounding the accident and whether the plaintiff driver contributed to the happening of the accident, the plaintiff has not established his freedom from negligence as a matter of law (see Allen v Echols, 2011 NY Slip Op 7592, [2d Dept. 2011]; Pollack v Margolin, 84 AD3d 1341 [2d Dept. 2011]; Myles v Blain, [*6]81 AD3d 798 [2d Dept. 2011]; Sayed v Aviles, 72 AD3d 1061[2d Dept. 2010]).

Therefore, based upon the foregoing the plaintiff's motion for partial summary judgment on the issue of liability is denied.

Dated: December 7, 2011

Long Island City, NY

______________________________

ROBERT J. MCDONALD

J.S.C.