When plaintiff was asked whether, at the time of the accident, her vehicle was "physically moving," she answered, "No." In response to the next question, whether she was "standing still", she responded, "Yes." When asked which lane the accident occurred in, she responded that it happened between lanes five and four, while she was attempting to move from one lane to the other. Accordingly, plaintiff violated Vehicle and Traffic Law § 1128(a).Īlthough our dissenting colleague expresses disbelief at our finding that plaintiff maintained her vehicle at a standstill while straddling two lanes on Bruckner Boulevard at the time of the accident, that finding is derived directly from plaintiff's own testimony.
Moreover, even if plaintiff's testimony were treated as plausible, by her own account she could not have first ascertained that her movement from lane five to lane four could be made with safety, given the approaching traffic she observed in her right side view mirror in lane four as she was moving into that lane of traffic.
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She further testified that she saw the truck move from the third lane from the curb (lane three) into lane four and that, at the moment of the collision, the truck passed her SUV, hitting the front passenger side of her SUV with the rear driver side portion of the truck as she tried to enter lane four.Īt the outset, it is completely implausible that plaintiff would maintain her vehicle at a standstill on Bruckner Boulevard, with the front passenger side of her vehicle projecting into lane four and the rear driver side of her SUV in lane five, in the midst of steadily moving traffic in both lanes, which plaintiff admits to having seen to her right. Plaintiff's testimony, however, was that shortly before the collision, she had observed, through her right side view mirror, defendants' truck and other vehicles approaching on her right while her SUV was standing still between lanes five and four as she was trying to enter lane four. The testimony of the driver of defendants' truck was that defendants' truck was wholly within lane four proceeding straight at the moment of the collision. Thus, plaintiff violated her "duty not to enter a lane of moving traffic until it was safe to do so" (Davis v Turner, 132 AD3d 603, 603 see Vehicle and Traffic Law § 1128 Steigelman v Transervice Lease Corp., 145 AD3d 439 ), "and failure to heed this duty constitutes negligence per se" (Sanchez v Oxcin, 157 AD3d 561, 564 ).ĭuring her testimony, plaintiff acknowledged that at the time of the accident she was attempting to cross six lanes of traffic on Bruckner Boulevard, and was moving from the fifth lane from the curb (lane five) into the fourth lane from the curb (lane four). The photographic evidence shows that plaintiff's SUV struck the rear of defendants' tractor-trailer as plaintiff was attempting to merge into defendants' truck's lane of traffic. Rodriguez, J.), entered on or about June 26, 2017, which, in this action for personal injuries sustained in a motor vehicle accident, granted defendants' motion for summary judgment dismissing the complaint, affirmed, without costs. Order, Supreme Court, Bronx County (Julia I. Molod Spitz & DeSantis, P.C., New York (Marcy Sonneborn of counsel), for respondents. Sacco & Fillas, LLP, Astoria (Nazareth Markarian of counsel), for appellant. Renwick, J.P., Richter, Tom, Kahn, Moulton, JJ.įazil Hatim, et al., Defendants-Respondents. This opinion is uncorrected and subject to revision before publication in the Official Reports.
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