        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

656
CA 15-00015
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND DEJOSEPH, JJ.


SHELLY F. MOORE, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

NANCY A. CURTISS, DEFENDANT-APPELLANT,
AND HENRY COX, DEFENDANT-RESPONDENT.


ADAMS, HANSON, REGO, KAPLAN & FISHBEIN, WILLIAMSVILLE (BETHANY A.
RUBIN OF COUNSEL), FOR DEFENDANT-APPELLANT.

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.

MURA & STORM, PLLC, BUFFALO (RYAN MURA OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Niagara County (Mark
A. Montour, J.), entered August 12, 2014. The order denied the motion
of defendant Nancy A. Curtiss for summary judgment dismissing the
complaint and all cross claims against her.

     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 a motor vehicle accident. Plaintiff was a
passenger in a taxicab operated by defendant Henry Cox, and the
collision occurred when Cox made a right-hand turn into a driveway in
the path of a vehicle operated by defendant Nancy A. Curtiss. Her
vehicle skidded on the snowy roadway when she applied her brakes in an
effort to avoid Cox’s vehicle. Supreme Court properly denied the
motion of Curtiss seeking summary judgment dismissing the complaint
against her. We agree with Curtiss that, as the driver with the
right-of-way, she was entitled to anticipate that Cox would obey the
traffic laws that required him to yield to her oncoming vehicle (see
Rose v Lebreth, ___ AD3d ___, ___ [May 8, 2015]; Lescenski v Williams,
90 AD3d 1705, 1705, lv denied 18 NY3d 811). Nevertheless, viewing the
submissions of the parties in the light most favorable to plaintiff
and Cox, as we must (see Victor Temporary Servs. v Slattery, 105 AD2d
1115, 1117), we conclude that the submissions of Curtiss in support of
her motion raise an issue of fact whether she failed to see Cox’s turn
signal and thus failed to “ ‘exercise reasonable care under the
circumstances to avoid an accident’ ” (Cupp v McGaffick, 104 AD3d
1283, 1284). We further conclude that the submissions of Curtiss
                                 -2-                           656
                                                         CA 15-00015

raise an issue of fact whether the speed at which she was traveling,
although reduced because of the weather conditions, was reasonable and
prudent under the circumstances (see Campo v Neary, 52 AD3d 1194,
1196; Pietrantoni v Pietrantoni, 4 AD3d 742, 742, lv dismissed 2 NY3d
823).




Entered:   June 12, 2015                        Frances E. Cafarell
                                                Clerk of the Court
