Gawera v. Scrogg

Appeal from an order of the Supreme Court, Erie County (Nelson H. Cosgrove, J.), entered March 18, 2003. The order denied defendant’s motion for summary judgment dismissing the complaint in a personal injury action. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed with costs. Memorandum: Plaintiffs commenced this action to recover damages for injuries sustained by Cindy L. Gawera (plaintiff) when the vehicle she was driving collided with defendant’s vehicle shortly after defendant exited a driveway and pulled onto the highway on which plaintiff was traveling. Supreme Court properly denied defendant’s motion for summary judgment dismissing the complaint. Defendant failed to meet her initial burden on the motion (see Karram v Cirillo, 281 AD2d 946 [2001]). Defendant’s own submissions raise triable issues of fact whether defendant properly yielded to oncoming traffic when she exited the driveway (see generally Ferrara v Castro, 283 AD2d 392, 393 [2001]) or “slow[ed] down without proper signaling so as to avoid a collision” (Niemiec v Jones, 237 AD2d 267, 268 [1997]; see Karram, 281 AD2d 946 [2001]; Silvestro v Wartella, 224 AD2d 799 [1996]). Because defendant failed to meet her initial burden on the motion, there is no need to consider the sufficiency of plaintiffs’ submissions in opposition [761] to the motion (see Ayotte v Gervasio, 81 NY2d 1062, 1063 [1993]). Present—Pigott, Jr., EJ., Green, Pine, Hurlbutt and Scudder, JJ.