Susan M. Coffed, as Administrator of the Estate of James B. Coffed, Deceased, Appellant,v.John N. McCarthy et al., Respondents.BriefN.Y.March 23, 20170 To be Argued by: NICOLE B. PALMERTON, ESQ. Time Requested for Argument: (20 Minutes) STATE OF NEW YORK Court of Appeals APL-2015-00202 SUSAN M. COFFED, as Administrator of the Estate of JAMES B. COFFED, Plaintiff-Appellant, vs. JOHN N. McCARTHY, GASPERINO F. FULFARO, Defendants-Respondents. Appellate Division Docket Number: CA 14-01730. Erie County Index No.: I-2013-242. BRIEF FOR DEFENDANTS-RESPONDENTS JOHN N. McCARTHY and GASPERINO F. FULFARO ADAMS, HANSON, REGO & KAPLAN Attorneys for Defendants-Respondents John N. McCarthy and Gasperino F. Fulfaro 20 Lawrence Bell Drive, Suite 300 Williamsville, New York 14221 Telephone: (716) 810-1320 Facsimile: (716) 634-0431 NICOLE B. PALMERTON, ESQ. Of Counsel Date of Completion: April 13, 2016 BATAVIA LEGAL PRINTING, INC.— Telephone (866) 768-2100 TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 COUNTER-STATEMENT OF FACTS ................................. 1 ARGUMENT: A. THERE ARE NO DISPUTED "GENUINE AND MATERIAL ISSUES OF FACT" ........................... 5 1. No dispute exists that the Walden traffic light was red . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 2. The location of the fallen bike in the Walden cross walk is immaterial as to the questions of negligence and is insufficient to raise a triable issue of fact ................ 9 B. THE APPELLATE DIVISION CORRECTLY DETERMINED THAT THE BICYCLIST'S ACTIONS WERE THE SOLE PROXIMATE CAUSE OF THE ACCIDENT ............................. 11 1. Mr. Coffed was negligent as a matter of law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 2. Mr. Coffed's negligence was the sole proximate cause of the accident . . . . . . . . . . . . . . . . . . . 13 3. There can be no finding of negligence on behalf of Mr. McCarthy ........................... 14 4. The turn signal was not a factor in this accident . . . . . . . . . . 15 C. THE EVIDENCE SUPPORTS THE APPELLATE DIVISION'S FINDING TO DISMISS THE COMPLAINT .......................... 19 D. THE CASES CITED BY MRS. COFFED CAN BE DISTINGUISHED .............................. 23 CONCLUSION ................................................... 26 -11- TABLE OF AUTHORITIES Page(s) CASES: Asabor v. Archdiocese ofN.Y., 102 A.D.3d 524 (!81 Dept. 2013) .................................. 6 Barile v. Carroll, 280 A.D.2d 988, 720 N.Y.S.2d 674 (4th Dept. 2001) ................. 21 Caldron-Scotti v. Rosentein, 119 A.D.3d 722 (2nd Dept. 2014) ............................... 24 Cicalese v. Ezequier Burier, 123 A.D.3d 1078 (2nd Dept. 2014) .............................. 24 Fried v. Misser, 115 A.D.3d 910 (2nd Dept. 2014) ............................... 25 Glick & Dolleck v. Tri-Pac Export Corp., 22 NY2d 439 (1968) ........................................... 5 Green v. Mower, 302 A.D.2d 1005 (4th Dept. 2003) ............................... 18 Holleman v. Miner, 267 A.D.2d 867,699 N.Y.S.2d 840 (2nd Dept. 1996) ................ 11 Johnson v. Murphy, 121 A.D.3d 1589 (4th Dept. 2014) ............................... 22 Kash v. Kroeger, 222 A.D.2d 1101 (4th Dept. 1995) ............................... 22 -111- Page(s) Koziol v. Wright, 26 A.D.3d 793; 809 N.Y.S.2d 350 ( 4th Dept. 2006) ................. 11 Palma v. Sherman, 55 A.D.3d 891, 867 NYS2d 111 (2nd Dept. 2008) .................. 13 Rodriquez v. CMB Collision, 112 A.D.3d 473 (Pt Dept. 2013) ................................. 24 Shapiro v. Munoz, 28 A.D.3d 638, 813 N.Y.S.2d 755 (2nd Dept. 2006) ................. 19 Todd v. Godek, 71 A.D.3d 872 (2d Dept. 2010) .............................. 23,24 Trzepacz v. Jara, 11 A.D.3d 531, 782 N.Y.S.2d 852 (2nd Dept. 2004) ................. 20 Zuckerman v. City ofNew York, 49 NY2d 557 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,6 OTHER AUTHORITIES: Vehicle & Traffic Law § 110 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Vehicle & Traffic Law§ 11 lO(a) ..................................... 12 Vehicle & Traffic Law§ 111 l(d) ..................................... 12 Vehicle & Traffic Law§ 1151(b) ..................................... 10 Vehicle & Traffic Law § 1231 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 -lV- QUESTIONS PRESENTED 1 : Did the Defendants/Respondents meet their burden for summary adjudication, determining that no material issues of fact were in dispute? The Court below correctly answered yes and dismissed the complaint. 2: Did the Plaintiff/Appellant fail to raise a disputed genuine and material issue of fact that would have precluded dismissal of the complaint? The Court below correctly answered that they did not and dismissed the complaint. COUNTER-STATEMENT OF FACTS This personal injury action arises out of a car accident involving an adult bicyclist and a dump truck. The plaintiff, Mr. Coffed was riding his bicycle along Walden Avenue when he failed to adhere to Vehicle & Traffic Laws and did not stop at the red light behind or even next to the dump truck. Instead, the bicyclist continued on the right shoulder of the road, past the dump truck's right turning signal, with his head down, and ran into the side of the right hand turning dump truck, ultimately leading to his death. (The -1- dump truck was owned by Mr. Fulfaro, and driven by Mr. McCarthy, an experienced commercial driver.) It is undisputed that the decedent bicyclist (Mr. Coffed) did not stop at the necessary white line for the red light. It is undisputed that he, in fact, did not stop at all prior to hitting the passenger side of the McCarthy truck. It is undisputed that the bicyclist was looking down as he passed the dump truck. It is undisputed that the bicyclist, as he entered the intersection against a red light, was looking down at the time of the impact. (R. 53) Had the bicyclist stopped at the white line, all of the evidence establishes that he would not have run into the passenger front side of the truck as it began his wide tum to the right. Furthermore, the record reflects that multiple cars passed by the front of the stationary McCarthy truck as they crossed over Walden to Sheldon Road. The witness Steele indicated in her sworn testimony that several cars proceeded with the green light in front of the stopped truck, and thus, would have been a good indicator to the bicyclist that the light was red for his lane of travel, even if he was not able to see the red light as he came to the intersection. (R. 49-50) (Arguably, one should come to a stop at an intersection especially in a situation where you may struggle with seeing the color of the light.) Despite all evidence suggesting that the light was red and -2- the intersection not clear or safe, the bicyclist failed to stop at the white line and thus, the accident ensued. It is further undisputed that Mr. McCarthy came to the intersection in a slow manner and came to a stop with his blinker on. After he put his right blinker on, he crept up to the intersection, as the light then turned red. As he sat there completely stopped, he looked for crossing traffic, consulted his mirrors, looked left and right, twice, checked his mirrors and only then started to make his right hand tum. (R124-125) He suddenly felt a slight impact and immediately stopped and exited the truck. (R. 106-12 7) All witnesses' accounts confirm that the bicyclist did not stop for the red light and confirm that he was looking down as he entered the intersection next to the dump truck. In furtherance of their job as investigators, the Lancaster Police Department conducted a complete investigation of this accident and concluded that the evidence supported a finding of no fault by Mr. McCarthy and also determined that the actions of the bicyclist were the sole cause of the accident. The record contains the expert report and conclusions of the Lancaster police, which determined: CONCLUSION: Based on collected data, statements and available -3- evidence, the investigators of this collision have determined that this incident was simply a tragic accident. Investigators have found no criminal culpability on the part of McCarthy. It is believed that a combination of sun glare, the dump truck's height and the bicyclist's geographical position relative to the dump truck prevented Coffed from observing the red light for Eastbound traffic on Walden Avenue. Coffed did proceed through a solid red light and struck the dump truck who had the right of way. Despite Coffed's extraordinary safety measures and biking experience, his failure to stop ultimately caused his fatal injuries (R. 76). It bears noting that although the Plaintiff/ Appellant Mrs. Coffed argues that the police accident investigation and report should not be considered, this is only raised for the first time herein, and not below. It also bears noting that the Plaintiff/ Appellant Mrs. Coffed submitte~ the document in the original opposition papers to the Summary Judgment motion, and therefore, cannot quarrel with its consideration herein. In addition, no other expert proof/opinion was submitted to refute or challenge the findings of the police that "driver inexperience and/or error has been ruled out in this collision" (R. 75). All witnesses' accounts confirm that the bicyclist did not stop for the red light and further confirm he was looking down as he entered the intersection next to the dump truck. Regardless of the police accident conclusions, the written decision of -4- the Appellate Division notes that the sole proximate cause of the accident was the bicyclist's failure to stop at the red light before entering the intersection. This fact is established by admissible testimony from the witnesses, and again, is undisputed. This accident does not happen if the bicyclist is stopped at the white line prior to the cross walk on Walden. Thus, even if this Honorable Court, or the court below disregard the police report, and only accepted the pieces of factual evidence, the record still supports dismissal. ARGUMENT A. THERE ARE NO DISPUTED "GENUINE AND MATERIAL ISSUES OF FACT". It is well settled that the standard for a denial of a summary judgment motion is the establishment of genuine and material issues of fact in dispute. The standard seeks not just disputed facts, but fact~ that are material and genuine to the question of negligence. "The standard for determining the motion is whether there are any genuine and material disputed issues of fact (see Glick & Do/leek v. Tri- Pac Export Corp., 22 NY2d 439, 441 [1968]; see also Zuckerman v. City -5- of New York, 49 NY2d 557, 562 [1980])". Asabor v. Archdiocese ofN.Y., 102 A.D.3d 524 (1st Dept. 2013) .. Both parties are obligated to support their contentions with admissible proof, with the rule for the opposing party more flexible and may allow for the opposing party easier admissibility rules but only upon acceptable excuse for failure to meet such a strict requirement. We have repeatedly held that one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient. See, Zuckerman supra, 49 NY2d 562-598. In the case at bar, the Plaintiff/Respondent Mrs. Coffed, seeks to graduate immaterial issues of fact into material ones, without an evidentiary basis to do so, and without excuse for said failure. 1. No dispute exists that the Walden traffic light was red. All four independent witnesses (R. 73) indicated that the light was red and that the dump truck stopped at the intersection. Ms. Steele was cross -6- examined on this point at the fatality hearing. She explained that she saw the first dump truck come to the intersection and make a right tum in front of her as she was stopped at her red light ( she was headed south towards Sheldon) and recalls its presence because it caused the cars in front of her and herself, to proceed slowly over Walden once the light cycled through to green for her. (R. 49-51) She explained that there three cars behind the first dump truck that went through the intersection before the McCarthy truck began its tum. There was a car in front of her, her car, and one behind her. She happen to look into her rearview mirror just as the McCarthy dump truck started its tum and observed the collision. (R. 50) She agreed that anyone looking, such as Mr. Coffed, up Walden would have easily seen the traffic crossing over Walden onto Sheldon. Mr. Tubbs was traveling behind Mr. McCarthy. He testified in his affidavit that the traffic light was red when he observed the right blinker on the McCarthy truck and observed the bicyclist ride past him on the right, with his head down,just as Mr. McCarthy began to make his right tum. (R. 53). Mr. McCarthy testified to that as well. He testified that he came to a stop behind Mr. Fulfaro as the lead dump truck made its right on the green light. He then crept up to the intersection and put on his right tum signal. -7- (R.123-125) Therefore, there is no dispute that the light was red. Not only is there no dispute that it is red, it is logically impossible for the light to have been green given the evidence. Thus the Appellate Division did not err in concluding that the light was red as a matter of law. The Lancaster Police accident investigation and report, it is argued by Mrs. Coffed, created an issue of fact as the light's color at the time of the accident. Mrs. Coffed argued below that Mr. McCarthy initially told the police he had a green light when he was making his tum (R.57). This is not exactly true, but more importantly, not relevant and not sufficient to deny the Summary Judgment motion. What the police investigator wrote, was the following: Investigators were also able to obtain a statement from the driver ' McCarthy contiguous with the collision. Same indicated that he had a green light to proceed Eastbound on Walden Avenue. Based on the observations of Detective Kerl, it is known that McCarthy was extremely upset and shaken by the events that had just unfolded. McCarthy was reported to have been vomiting while providing the statement due to being upset ... Driver inexperience and/or error has been ruled out in this collision (R.73) The above statement does not state that the light was green when he -8- started his turn and the police make efforts to note he was upset. The police reviewed the evidence concerning the color of the light at the time of the accident and all concur it was red. If, however, we accept the Plaintiff/Appellant Mrs. Coffed's demand that the police report is inadmissible, then the suggestion that Mr. McCarthy may have stated the light was green (which clearly the light was at SOME point) then any comments as written by the officer summarizing what Mr. McCarthy may have said is not admissible evidence. It follows then that the only evidence that IS admissible is the fatality hearing testimony of Ms. Steele, the admissible affidavit of Mr. Tubbs, and the admissible sworn testimony of Mr. McCarthy. All the admissible evidence proves the light was red, and thus Mr. Coffed was obligated to stop prior to the intersection. 2. The location of the fallen bike in the Walden cross walk is immaterial as to the questions of negligence and is insufficient to raise a triable issue of fact. Ms. Coffed argues that the accident happened in the cross-walk and thus this is an issue of fact in dispute that should have prevented summary dismissal. This is speculation without any factual basis in the record. Ms. -9- Coffed suggests we look at the final resting place of the bike, which was in the cross walk in the police photos, and conclude that the actual initial contact occurred in that exact spot. That is inadmissible speculation. There is no expert proof submitted that supports that conclusion. More importantly, the cross walk is irrelevant to this case. The bicyclist was not in the protected class of persons who would enjoy protection under the cited Vehicle and Traffic law provisions governing cross walks. Cross walks are for pedestrians. (See, V & T law section 110, which defines that area of the roadway connecting sidewalks for pedestrians.) Bicyclists are obligated to follow the rules of the road for vehicles, just like cars. Ms. Coffed argues that it is possible that Mr. Coffed was going to take a left and thus could have been in the cross walk for that purpose. As noted above, the cross walk is irrelevant as to the cyclist. But in addition to that, the idea that the V & T law would allow a bicyclist to race up to a traffic intersection and slam a left turn from the far right side of the intersection across the cross walk and in front of moving traffic would seem an impossible stretch of the legislative intent. (And in fact is contrary to V & T law section 1151 (b) which states no pedestrian shall suddenly leave the curb and run into the path of a vehicle which is so close they cannot yield.) -10- · Beyond that, however, the evidence by way of independent witnesses as noted now repeatedly, establishes that Mr. Coffed rode his bike straight into the passenger side of the truck without stopping and without. looking. Thus the argument that maybe he was going to try and tum left to cross over Walden in front of the bump truck is without evidentiary support. It is also inconsistent with logic. B. THE APPELLATE DIVISION CORRECTLY DETERMINED THAT THE BICYCLIST'S ACTIONS WERE THE SOLE PROXIMATE CAUSE OF THE ACCIDENT. 1. Mr. Coffed was negligent as a matter of law. It is well-settled that an unexcused violation of the Vehicle and Traffic Law constitutes negligence per se when said violation is the proximate cause of the accident. Koziol v. Wright, 26 A.D.3d 793; 809 N.Y.S.2d 350 (4th Dept. 2006) citing, Holleman v. Miner, 267 A.D.2d 867, 699 N.Y.S.2d 840 (2nd Dept. 1996). In the present case, it was the plaintiff, Mr. Coffed who violated multiple Vehicle and Traffic Laws when he failed to stop at the white line for the red light, thus causing this accident. -11- Had Mr. Coffed stopped at the white line at the red light, as was his duty as a bicyclist on the roadway, this accident would never have happened. Vehicle and Traffic Law § 12Jl provides: Traffic laws apply to persons riding bicycles or skating or gliding on in-line skates. Every person riding a bicycle or skating or gliding on in-line skates upon a roadway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle by this title, except as to special regulations in this article and except as to those provisions of this title which by their nature can have no application. (Emphasis added) Vehicle and Traffic Law§ 11 lO(a) provides: Every person shall obey the instructions of any official traffic- control device applicable to him placed in accordance with the provisions of this chapter .... (Emphasis added) Vehicle and Traffic Law §llll(d) provides as follows: 1. Traffic, except pedestrians, facing a steady circular red signal, unless to make such other movement as is permitted by other indications shown at the same time, shall stop at a clearly marked stop line .. .. (Emphasis added) Thus, it is the law of this state that a bicyclist who approaches a red -12- light at an intersection must stop for a red light before proceeding into the intersection, and if a white line is present, he is to stop at it upon approaching the red light. It is undisputed that Mr. Coffed approached the intersection along the shoulder with his head down and never stopped prior to hitting the side of the dump truck. It is undisputed that he did not stop at the white line. It is undisputed that there was in fact, a white line (R. 84-85), which he passed and subsequently struck the McCarthy truck as it turned right. 2. Mr. Coffed's negligence was the sole proximate cause of the accident. Furthermore, the duty to see what is there to be seen is also a duty placed upon the bicyclist. The Appellant Division, Second Department has held: A bicyclist is required to use reasonable care for his or her own safety, to keep a reasonably vigilant lookout for vehicles, and to avoid placing himself or herself in a dangerous position. Palma v. Sherman, 55 A.D.3d 891,867 NYS2d 111 (2°d,Dept. 2008). Jason Tubbs testified that he was behind the McCarthy dump truck. -13- He recalled passing the bicyclist before the intersection (as did Mr. McCarthy) and recalled that the McCarthy truck came to a stop at the intersection with Sheldon, at the red light. He observed the McCarthy truck put on its right tum signal, and both dump trucks came to a stop (R.53). As Mr. Tubbs sat behind Mr. McCarthy, he saw the bicyclist attempt to pass the McCarthy truck. He saw that the bicyclist had his head down as he passed the McCarthy truck and he saw that the bike did not stop for the red light. "The bicyclist was looking down when the impact occurred". (R. 53) Thus, the record reflects competent evidence that Mr. Coffed failed in his duty to avoid a dangerous situation when he rode head long into a busy rush hour intersection with his head down unawares. His actions were correctly found to be the sole proximate cause of this unfortunate tragedy. 3. There can be no finding of negligence on behalf of Mr. McCarthy. The investigators determined (R. 76): In this collision it appears that the bicyclist would have been just out of the driver's field of view while initiating his Southbound tum. At the DMV fatality hearing, witnesses Julie Steele and Jason Tubbs testified, as did one of the police officers, which did not result in any finding -14- against Mr. McCarthy as he did not lose his license (R. 128). Furthermore, the witness Mr. Tubbs confirmed in his affidavit that Mr. McCarthy approached the intersection reasonably, came to a stop, turned on his right tum signal and started his controlled tum. Mr. McCarthy testified that he came to the intersection behind the first dump truck while the light was green. That truck made the right hand tum. Then, the light turned red and Mr. McCarthy slowly proceeded up to the intersection. He came to a complete stop and watched the north-south traffic cross in front him for about a minute to a minute and a half ( one of the cars was occupied by the witness Steele) while he waited for it to clear. (R. 124) He then looked to the right, looked to the left and looked right again and checked his right passenger side mirror. (R. 125) He did not see anyone approaching in the right hand mirror and commenced his tum. The accident ensues. There is no evidence that Mr. McCarthy acted in any unreasonable manner, and none of these facts as they pertain to Mr. McCarthy are in dispute. 4. The turn signal was not a factor in this accident. It bears noting that this issue was not raised in the papers at the -15- motion level, and arguably is not preserved for review ( as was noted by the Appellate Division's decision). Notwithstanding, Ms. Coffed argues that the missing tum signal on one part of the subject truck is a fact that should preclude summary judgment. Again, this is speculation. It is also insufficient to defeat the expert proof that directly addressed this issue. At the outset, we must address the objection by Mrs. Coffed that the police accident report does not provide admissible material in support of the dismissal of this action. The issue of the tum signal only arises out of the post-accident findings of the police. The police did not personally observe the tum signal assembly before or at the time of the accident, and thus, their opinion that it was not working, if we accept Mrs. Coffed's objection, is not admissible as evidence, and thus cannot be a predicate for a finding that a triable issue of fact exists. Considering, then, the only evidence in the case that would be in admissible form according to Mrs. Coffed, then it becomes undisputed that at the time of the accident, the tum signals on the entire truck were operable. Mr. McCarthy testified that he conducted a pre-trip inspection on the subject truck at around 7 :00 a.m. on the day of the accident. (R. 106-113) At the time of the inspection, an hour before the accident, all of the back tum -16- signals worked. (R. 112) Further, Mr. Tubbs testified that he saw the right turning signal on the McCarthy truck at the subject intersection, moments before the accident, and thus a tum signal was there to be seen and is thus evidence that the truck's intention to tum right was delineated and obvious to anyone who was seeing what was there to be seen. Therefore, if we reject the police report, the only evidence in the case is that the truck's signals were operational prior to the accident and again, dismissal would be warranted. Alternatively, if we accept the opinion that the right secondary tum signal was not operational at the time of the accident, this still does not produce a material fact in dispute, as the suggestion that Mr. Coffed would have seen the primary tum signal but for its height and due to the sun is without evidentiary bases and is speculation. There is nothing in the record - that indicates that Mr. Coffed was unable to see the primary tum signal. The only evidence in the record is that his head is down, and that would be the only supportable piece of evidence as to why he may have missed the first tum signal on the box. It should also be noted that he went into the impact with his head down, and thus, no matter how many tum signals there were, we would have missed them. Once again, thought, had he stopped at the red -17- light, the issue of the dump truck turning would have been irrelevant to his day. Thus, it is respectfully submitted that the signal light is not a substantial factor or proximate cause of the accident as the lower court so stated. Again, alternatively, if the investigator's opinion is accepted, it is the only expert proof on this issue; in fact, it is the only evidence on this issue. The police investigator specifically addressed the tum signal violation in the report. In his expert opinion, he states: "Only 393.9TS would have taken the dump truck out of service and none of these violations were factors in this collision". (R.76) As Ms. Coffed has not submitted any contrary proof or expert opinion, then the suggestion that the missing tum signal could be a substantial factor in causing the injuries is without merit, and is insufficient to defeat a motion for summary judgment as a matter of law. On that note, consider Green v Mower, 302 A.D.2d 1005 (4th Dept. 2003). In that case, the defeQ.dant did not use his tum signal when he was making a left tum and in fact merely "glanced" to the left when he began his left tum. Nevertheless, the court did not find those to be issues to prevent a finding that the bicyclist's actions in failing to yield the righ~ of way to the truck precluded summary judgment. Thus, the issue of an alleged missing tum signal is not sufficient to -18- defeat the bicyclist's failure to yield the intersection to Mr. McCarthy and not stop at the red light, especially once Mr. McCarthy had begun his tum and was in possession of the intersection. C. THE EVIDENCE SUPPORTS THE APPELLATE DIVISION'S FINDING TO DISMISS THE COMPLAINT There are numerous examples of situations where summary judgment was granted dismissing the case as against the defendant where there was no evidence of negligent behavior by the defendant. The mere happening of the accident is not evidence of wrong doing. Mrs. Coffed propounds many cases wherein the courts found issues of fact did preclude summary judgment. But for each of those, there are cases where in summary adjudicatipn on the issue of negligence can be had by the defendant. The question seems to be whether the plaintiff can set forth admissible evidence of actual wrong doing by the defendant. As the above arguments outline, there is no proof of wrongdoing by Mr. McCarthy. Consider the Second Departments holding in Shapiro v. Munoz, 28 A.D.3d 638, 813 N.Y.S.2d 755 (2°d Dept. 2006): The defendant Raul Vivas Munoz demonstrated his pnma facie -19- entitlement to judgment as a matter of law by establishing that the plaintiff, while riding a bicycle, violated Vehicle and Traffic Law § 1111 ( d)( 1) by making a left tum against a red traffic light into the path of a vehicle operated by Munoz, which was legally proceeding through a green traffic light ( see More back v. Mesquita, 17 A.D. 3d 420, 793 N.YS.2d 148; Lestingi v. Holland, 297 A.D.2d 627, 747 N. YS.2d 522; Cenovski v. Lee, 266 A.D.2d 424, 698 N. YS.2d 868). In response, the plaintiff failed to raise a triable issue of fact as to whether Munoz was in any way at fault in the happening of the accident or whether he could have done anything . to avoid the collision (see Lestingi v. Holland, supra; Casanova v. New York City Tr. Auth., 279 A.D.2d 495, 719 N. YS.2d 125; Puccio v. Caputo, 272 A.D.2d 387, 707 N. YS.2d 478; Schneider v. American Diabetes Assn., 253 A.D.2d 807, 677 N. YS.2d 627). Similarly, consider Trzepacz v. Jara, 11 A.D.3d 531, 782 N.Y.S.2d 852 (2nd Dept. 2004 ): The defendant demonstrated his prima facie entitlement to judgment as a matter of law by establishing that the plaintiff, who was riding a bicycle, proceeded into an intersection controlled by a stop sign and failed to yield the right of way to his approaching vehicle (see Vehicle and Traffic Law§§ 1142[a}, 1172[a}, 1231; Morgan v. Hachmann, 9 A.D.3d 400, 780 N.YS.2d 33; Nasirudin v. Harry, 8 A.D.3d 540, 778 N. YS.2d 699; Batal v. Associated Univs., 293 A.D.2d 558, 559, 741 N.YS.2d 551; Szczotka v. Adler, 291 A.D.2d 444, 737 N.YS.2d 121; Meliarenne v. Prisco, 9 A.D.3d 353, 780 N.YS.2d 30). The plaintiffs -20- conclusory and speculative assertions in opposition to the defendant's motion for summary judgment concerning the defendant's speed and possible negligence in failing to avoid the accident were unsupported by any competent evidence and, therefore, did not raise ·a triable issue of fact (see Mora v. Garcia, 3 A.D.3d 478, 479, 771 N.Y.S.2d 138; Rieman v. Smith, 302 A.D.2d 510, 511, 755 N. Y.S.2d 256; Lupowitz v. Fogarty, 295 A.D.2d 576, 744 N.Y.S.2d 480; Bo/ta v. Lohan, 242 A.D.2d 356, 661 N. Y.S.2d 286; Meliarenne v. Prisco, supra ). Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572). Consider the Fourth Department's case of Barile v. Carroll, 280 A.D.2d 988, 720 N.Y.S.2d 674 (4th Dept. 2001): Supreme Court properly granted defendants' motions for summary judgment dismissing the complaint on the ground that decedent's failure to stop at the red light was the sole proximate cause of the accident. Carroll met his init_ial burden by establishing that he proceeded into the intersection with the right of way, that he was not exceeding the speed limit and that he was paying attention to the traffic surrounding him. He also submitted affidavits from eyewitnesses establishing that decedent had run the red light and that there was no time for Carroll to react to avoid the accident. "[ A ]n operator who has the right of way is entitled to anticipate that other vehicles will obey the traffic laws that require them to yield" ( Namisnak v. Martin, 244 A.D.2d 258, 260, 664 N. Y.S.2d 435; see, -21- Kelsey v. Degan, 266 A.D.2d 843, 697 N. Y.S.2d 426). In opposition plaintiff failed to raise a triable issue of fact. Similarly in Johnson v. Murphy, 121 A.D.3d 1589 (4th Dept. 2014), Supreme Court properly granted defendant's motion dismissing the complaint where the defendant's established that the plaintiff rpde his bicycle from his driveway and into the road despite not being able to see oncoming traffic due to an obstruction. Defendant had no time to react as she did not see the plaintiff and had the right of way. Lastly, the Appellate Division, Fourth Department concluded in Kash v. Kroeger, 222 A.D.2d 1101 (4th Dept. 1995) that the jury rationally concluded that the defendant driver was free from negligence when; he had his right directional on as he went through the intersection at a distance of about 150 feet from the accident site, was traveling about 5-10 miles an hour, looked in his rear-view mirror, glanced over his shoulder and then slowed and began his tum, and the bicyclist hit the right side of the automobile. The court stated that, "A fair interpretation of the evidence supports the jury's conclusion that defendant acted reasonably, despite the fact that he did not see plaintiff when he looked into his rear-view mirror and over his shoulder before turning into the driveway." Id. at 1102. -22- Similar to the above defendants, the evidence in this case supports the finding that Mr. McCarthy was not at fault for this accident. He was lawfully driving down Walden Avenue with the right-of-way when he legally approached the intersection of Sheldon. He came to a stop, lawfully, at the red light. He turned on his right hand signal. He looked left, he looked right, and consulted all of his mirrors, including the right hand mirror. He concluded that it was safe to make the right hand tum and begun to do so. Once the McCarthy truck was in the intersection, which' it obviously was, he had the right-of-way in the intersection and the bicyclist Mr. Coffed failed to yield that right-of-way by failing to stop at the designated white line for the red light. Had Mr. Coffed put his head up and took note of the tum signal on the truck, and took note of the red light which he was rapidly approaching along with the flow of traffic in front of him, and had followed the law of this state and came to a stop, this accident would never have occurred. D. The cases cited by Mrs. Coffed can be distinguished. In Todd v. Godek, 71 A.D.3d 872 (2d Dept. 2010), then defendant was held in the case because conflicted evidence suggested that the plaintiff was -23- already in the intersection when the collision occurred. It is respectfully submitted that this case is actually favorable to the Defendants/Respondents in this case. The evidence shows that Mr. McCarthy was already in the intersection, when the bicyclist failed to stop at the red light, thus failing to yield the right of way to him. Todd thus suggests that because Mr. McCarthy was already in the intersection and as such in control of the intersection, it was the bicyclist that was negligent, not Mr. McCarthy. In Rodriquez v. CMB Collision, 112 A.D.3d 473 (1st Dept. 2013), the defendant was held in the case because there was competent evidence of excessive speed and no reason to have not seen the illegal U-tum in front of him. In Cicalese v. Ezequier Burier, 123 A.D.3d 1078 (2nd Dept. 2014), as in the above cases, there was admissible and relevant evidence of negligent actions of the defendant. The defendant had a green light and entered the intersection to make a left tum, but did not do so before the light returned to red. Then, under a red light, he attempts to make a left tum in front of the co-defendant traveling in the opposite direction. The defendant essentially made a left tum on a red light. In Caldron-Scotti v. Rosentein, 119 A.D.3d 722 (2nd Dept. 2014), the plaintiff made a left tum in front of defendant after getting nearly through -24- the entire tum. Competent evidence in the form of testimony was submitted and gave conflicting stories. Thus the motion was denied. In Fried v. Misser, 115 A.D.3d 910 (2nd Dept. 2014), the defendant testified he did not know where he was looking in the moments prior to the impact with the plaintiff bicyclist and thus could not establish that he was keeping a proper lookout. The evidence in the case at bar differs from the evidence in the above cases because in the present case, the evidence does not establish any negligent acts by Mr. McCarthy. He did not testify that he did not know where he was looking before the accident, he did not testify that he made a left tum on a red light, he did not testify to never seeing the plaintiff. In fact, the record holds that Mr. McCarthy saw Mr. Coffed about a mile before the intersection and went around him. (R. 120) Thus, he cannot be charged with failing to see the bicyclist; it cannot be said that he "failed to see what was there to be seen". On the contrary, he saw the, bicyclist and then proceeded down the roadway. It was not his failure to see the bicyclist that caused this accident; but rather the bicyclist's failure to stop as required by law. -25- CONCLUSION It is therefore respectfully submitted that the Order of the Appellate Division, Fourth Department, dismissing the complaint be affirmed. DATED: Williamsville, New York April 13, 2016 ADAMS, HANSON, REGO & KAPLAN OL B ALMERTON, ESQ. Attorne ·yor Defendants/Respondents John McCarthy and Gasperino F. Fulfaro 20 Lawrence Bell Drive, Suite 300 Williamsville, New York 14221 Telephone: (716) 810-1332 -26-