SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

85 

CA 10-00923 

PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ. 

 

JUDITH A. ROST, PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

MICHAEL A. STOLZMAN, MICHAEL OLIVER, 

SUSAN OLIVER, DEFENDANTS-RESPONDENTS,

JENNIFER D. MARTINO AND GINA L. AVINO, 

DEFENDANTS-APPELLANTS. 

 

BARTH SULLIVAN BEHR, BUFFALO (SARAH P. RERA OF COUNSEL), FOR

DEFENDANTS-APPELLANTS.

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),

FOR PLAINTIFF-RESPONDENT.

KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (AMANDA L. MACHACEK OF

COUNSEL), FOR DEFENDANT-RESPONDENT MICHAEL A. STOLZMAN. 

HAGELIN KENT LLC, BUFFALO (VICTOR M. WRIGHT OF COUNSEL), FOR

DEFENDANTS-RESPONDENTS MICHAEL OLIVER AND SUSAN OLIVER. 

 

Appeal from an order of the Supreme Court, Niagara County (Ralph

A. Boniello, III, J.), entered July 8, 2009 in a personal injury

action. The order denied the motion of defendants Jennifer D. Martino

and Gina L. Avino for summary judgment. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs. 

Memorandum: Plaintiff commenced this action seeking damages for

injuries she sustained in an automobile accident. Defendant Michael

A. Stolzman backed his automobile, in which plaintiff was a passenger,

out of the driveway of the home of defendants Michael Oliver and Susan

Oliver and into the path of an oncoming automobile operated by

defendant Jennifer D. Martino. Martino was operating the automobile

with the permission of the owner, defendant Gina L. Avino. In a prior

appeal, we concluded that Supreme Court properly denied, inter alia,

that part of the Olivers’ motion seeking to dismiss the negligence

cause of action against them inasmuch as there was a triable issue of

fact whether the Olivers were negligent with respect to that accident

(Martino v Stolzman, 74 AD3d 1764, 1766-1767, appeal dismissed 15 NY3d

890, lv granted 79 AD3d 1832). We conclude on this appeal that

Supreme Court properly denied the motion of Martino and Avino for

summary judgment dismissing the amended complaint against them
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CA 10-00923 

inasmuch as there is a triable issue of fact whether Martino was

negligent in the operation of the automobile owned by Avino.

Defendants contend that the court erred in denying their motion

because there is no admissible evidence indicating that Martino was

negligent. We reject that contention. “ ‘[A]n operator [of an

automobile] who has the right[-]of[-]way is entitled to anticipate

that other [automobiles] will obey the traffic laws that require them

to yield’ ” (Barile v Carroll, 280 AD2d 988, 988; see Hillman v Eick,

8 AD3d 989, 991). Consequently, although “ ‘[n]egligence cases . . .

do not usually lend themselves to summary judgment’ ” (Hyatt v

Messana, 67 AD3d 1400, 1401, quoting Ugarriza v Schmieder, 46 NY2d

471, 474), an operator of an automobile involved in an accident

similar to that at issue may establish entitlement to summary

judgment, i.e., that he or she was free from negligence, by

demonstrating that the other automobile “suddenly entered the lane

where [that driver] was operating [his or her automobile] in a lawful

and prudent manner and that there was nothing [that driver] could have

done to avoid the collision” (Bulls v Massara, 71 AD3d 1408, 1409

[internal quotation marks omitted]; see Fratangelo v Benson, 294 AD2d

880). Here, defendants met their initial burden on the motion by

demonstrating that the accident occurred after the automobile operated

by Stolzman entered the path of the oncoming automobile operated by

Martino (see e.g. DeLuca v Cerda, 60 AD3d 721; Yasinosky v Lenio, 28

AD3d 652). 

We further conclude, however, that plaintiff and the remaining

defendants raised a triable issue of fact in opposition to the motion

(see generally Zuckerman v City of New York, 49 NY2d 557, 562). All

drivers have a general “ ‘duty to see that which through the proper

use of [their] senses [they] should have seen’ ” (Huff v Rodriguez, 45

AD3d 1430, 1431; see Hyatt, 67 AD3d at 1402). Here, the papers

submitted in opposition to the motion included evidence that Martino

could not remember whether she was using her windshield wipers on the

rainy night of the accident, that Martino had four or five drinks on

that night and that Martino was prescribed the medications Zoloft and

Xanax at the time of the accident. Further, although Martino

testified at her deposition that she did not feel impaired by alcohol

at the time of the accident, she told police at the accident scene

that she had not consumed alcohol on the night of the accident and,

according to Avino, Martino tried to switch seats with Avino after the

impact. Moreover, Martino could not recall where she was looking

prior to the accident and did not attempt to avoid colliding with the

automobile operated by Stolzman. That evidence, when viewed in its

entirety, raises a triable issue of fact sufficient to defeat the

motion (see Harris v Jackson, 30 AD3d 1027, 1028; see generally

Zuckerman, 49 NY2d at 562). 

We note that, in reaching our determination, we have disregarded

the affidavit of the accident reconstruction expert submitted in

support of the motion inasmuch as the conclusions asserted therein

“are speculative or unsupported by any evidentiary foundation” (Diaz v

New York Downtown Hosp., 99 NY2d 542, 544; see Ciccarelli v Cotira,

Inc., 24 AD3d 1276). Even assuming, arguendo, that the affidavit was
-3- 85 

CA 10-00923 

supported by an evidentiary foundation, we conclude that the court

properly denied the motion because there is a triable issue of fact

whether Martino drove in a lawful and prudent manner immediately

before the accident (see Bulls, 71 AD3d at 1409; Fratangelo, 294 AD2d

880; see generally Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315,

rearg denied 52 NY2d 784, 829). 

Martino and Avino further contend that the court erred in denying

their motion because Martino acted reasonably in response to the

intrusion of the automobile operated by Stolzman into her lane of

travel. We reject that contention. “As a general rule, ‘whether a

party acted prudently is a question for the trier of fact’ ” (Heye v

Smith, 30 AD3d 991, 992), and “ ‘[a] driver confronted with an

emergency situation may still be found to be at fault for the

resulting accident where his or her reaction is found to be

unreasonable or where the prior tortious conduct of the driver

contributed to bringing about the emergency’ ” (Sossin v Lewis, 9 AD3d

849, 851, amended on rearg 11 AD3d 1045; see Greenwell v Moody, 295

AD2d 954, 955). Here, there are triable issues of fact whether

Martino’s reaction to the automobile operated by Stolzman was

reasonable and whether any negligence on the part of Martino was a

proximate cause of the accident (see Sossin, 9 AD3d at 851; Greenwell,

295 AD2d at 955; cf. Lucksinger v M.T. Unloading Servs., 280 AD2d 741,

742).

Entered: February 18, 2011 Patricia L. Morgan

Clerk of the Court