State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 29, 2015 518459 

________________________________

SALLY WALLACE, as

Administrator of the 

Estate of LAWRENCE 

MILLINGTON JR., Deceased,

Appellant,

v MEMORANDUM AND ORDER

PATRICIA BARODY,

Respondent.

________________________________

Calendar Date: November 12, 2014

Before: Peters, P.J., Lahtinen, Garry, Rose and Lynch, JJ.

__________

Finkelstein & Partners, LLP, Newburgh (James W.

Shuttleworth III of counsel), for appellant.

Pemberton & Briggs, Schenectady (Paul Briggs of counsel),

for respondent.

__________

Garry, J.

Appeal from an order of the Supreme Court (Ferradino, J.),

entered November 12, 2013 in Saratoga County, which granted

defendant's motion for summary judgment dismissing the complaint.

Defendant was driving through an intersection on Upper Glen

Street in the Town of Queensbury, Saratoga County when her

vehicle struck and killed a pedestrian (hereinafter decedent),

who was crossing against the light in a crosswalk. Plaintiff

commenced this negligence action on decedent's behalf. Following

joinder of issue and discovery, defendant moved for summary

judgment dismissing the complaint. Supreme Court granted the
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motion, and plaintiff appeals.

Defendant demonstrated her prima facie entitlement to

summary judgment by providing evidence that decedent "darted" so

suddenly into the path of defendant's vehicle that she was unable

to avoid the collision (St. Andrew v O'Brien, 45 AD3d 1024, 1027-

1028 [2007], lv dismissed and denied 10 NY3d 929 [2008] [internal

quotation marks and citations omitted]; see Green v Hosley, 117

AD3d 1437, 1437-1438 [2014]; Sheppeard v Murci, 306 AD2d 268,

268-269 [2003]). Defendant's affidavit and deposition testimony

and the affidavits of several witnesses, taken together,

establish that, in the moments immediately before the accident,

defendant was driving north in the outside lane of the two

northbound lanes. A large cargo van was traveling beside and

slightly ahead of her in the inside northbound lane. The two

vehicles entered the intersection with a green light in their

favor and passed most of the way through it. The van stopped

abruptly on the north side of the intersection, just before

reaching the pedestrian crosswalk, to avoid colliding with

decedent. The van driver stated that decedent was walking

rapidly through the crosswalk from the van driver's left and –

although he was crossing against a red light – was gazing

straight ahead without looking left or right for oncoming

traffic. The van driver checked his passenger side mirror and

saw defendant's vehicle approaching on his right side and

slightly behind his van. Decedent passed in front of his van

and, without looking to his right to check for traffic, stepped

directly into the path of defendant's vehicle. The van driver

opined that it would have been impossible for defendant to see

decedent before he entered her lane due to the position of the

van and decedent's location as he crossed in front of it.

Defendant testified that she had seen the van traveling

beside her before the accident. She did not see decedent until a

person's face appeared on her windshield, at which point she

immediately braked to a stop. She realized at the moment of

impact that the van beside her had stopped. Her vehicle

sustained damage to the driver's side mirror and the windshield

on that side. The driver of a vehicle directly behind defendant

testified by affidavit that he saw the van brake abruptly to a

stop, after which decedent stepped from in front of the van into
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defendant's lane, moving so quickly that defendant did not have

time to avoid striking him. Another witness saw decedent pass in

front of the van and confirmed that he did so without stopping,

slowing down or hesitating. These consistent accounts were

sufficient to establish defendant's prima facie entitlement to

summary judgment, shifting the burden to plaintiff to establish

an issue of fact as to whether defendant was operating her

vehicle in a negligent manner (see Warley v Grampp, 103 AD3d 997,

998 [2013]).

As plaintiff argues, defendant had a duty to see what was

there to be seen through the proper use of her senses (see

Ranaudo v Key, 83 AD3d 1315, 1316 [2011]; National Interstate v

A.J. Murphy Co., Inc., 9 AD3d 714, 715-716 [2004]). However,

plaintiff presented no evidence challenging defendant's showing

that defendant could not have seen decedent before he stepped

into the path of her vehicle. Plaintiff likewise offered no

evidence establishing an issue of fact as to whether defendant

violated the statutory duty to operate her vehicle with "due care

to avoid colliding with any . . . pedestrian" (Vehicle and

Traffic Law § 1146 [a]). Defendant testified that she was

traveling at about 30 miles per hour (hereinafter mph) as she

passed through the intersection, where the speed limit was 40

mph. The driver behind her estimated that defendant's speed was

15 mph, and no witness claimed that she had been exceeding the

speed limit. Contrary to plaintiff's claims, the statements of

two witnesses that defendant was driving at "full speed" and at

"the posted speed limit" and did not slow down as she passed

through the intersection did not raise issues of fact as to

whether she was speeding or otherwise failing to exercise due

care. "[A] driver entering an intersection with a green light is

not normally required to reduce his or her lawful speed" (Boston

v Dunham, 274 AD2d 708, 710 [2000]), and nothing in the parties'

submissions suggested that defendant's speed was excessive or

that she otherwise acted "blindly and wantonly" in entering the

intersection (Greco v Boyce, 262 AD2d 734, 735 [1999]). 

Contrary to plaintiff's contention, defendant's failure to

give warning by sounding her horn does not establish that she

violated the statutory duty to do so "when necessary," as the

uncontradicted evidence establishes that defendant could not see
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decedent and had no time to give warning before the impact

(Vehicle and Traffic Law § 1146 [a]; see McGraw v Ranieri, 202

AD2d 725, 728 [1994]; see also Sauter v Calabretta, 90 AD3d 1702,

1703 [2011]). Finally, the facts do not support plaintiff's

contention that defendant improperly passed the stopped van at a

pedestrian crosswalk in violation of Vehicle and Traffic Law

§ 1151 (c),1 and, even if they did, the statute does not apply to

intersections regulated by traffic signals (see Rudolf v Shayne,

Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; Rudolf v

Kahn, 4 AD3d 408, 409 [2004]). As plaintiff failed to establish

the existence of any material issue of fact as to whether

defendant was driving negligently, Supreme Court properly granted

summary judgment to defendant (see Johnson v Lovett, 285 AD2d

627, 627 [2001]; Carrasco v Monteforte, 266 AD2d 330, 331

[1999]).

Peters, P.J., Lahtinen, Rose and Lynch, JJ., concur.

ORDERED that the order is affirmed, with costs.

ENTER:

Robert D. Mayberger

Clerk of the Court

1 Contrary to plaintiff's repeated assertions, defendant

did not testify that she saw the stopped van before entering the

intersection.