Opinion
2021–01295, 2021–06801 Index No. 500417/17
09-13-2023
Francisco ANDRADE–FUENTES, appellant, v. IGLESIA CRISTIANA VALLE DE JESUS, INC., et al., respondents (and a third-party action).
Wingate, Russotti, Shapiro & Halperin, LLP (Chirico Law PLLC, Brooklyn, NY [Vincent Chirico ], of counsel), for appellant. Catalano Gallardo & Petropoulos, LLP, Jericho, NY (William L. Schleifer of counsel), for respondents.
Wingate, Russotti, Shapiro & Halperin, LLP (Chirico Law PLLC, Brooklyn, NY [Vincent Chirico ], of counsel), for appellant.
Catalano Gallardo & Petropoulos, LLP, Jericho, NY (William L. Schleifer of counsel), for respondents.
FRANCESCA E. CONNOLLY, J.P., JOSEPH J. MALTESE, PAUL WOOTEN, HELEN VOUTSINAS, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Mark I. Partnow, J.), dated February 10, 2021, and (2) an order of the same court dated September 9, 2021. The order dated February 10, 2021, insofar as appealed from, denied that branch of the plaintiff's motion which was for summary judgment dismissing the defendants’ affirmative defenses alleging comparative negligence. The order dated September 9, 2021, insofar as appealed from, upon reargument, in effect, vacated the determination in the order dated February 10, 2021, granting that branch of the plaintiff's motion which was for summary judgment on the issue of liability, and thereupon, denied that branch of the plaintiff's motion.
ORDERED that the order dated February 10, 2021, is affirmed insofar as appealed from; and it is further,
ORDERED that the order dated September 9, 2021, is reversed insofar as appealed from, on the law, and, upon reargument, the determination in the order dated February 10, 2021, granting that branch of the plaintiff's motion which was for summary judgment on the issue of liability, is adhered to; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
On July 3, 2016, the plaintiff allegedly was injured when the vehicle he was operating collided with a vehicle operated by the defendant Linda Rodriguez and owned by the defendant Iglesia Cristiana Valle De Jesus, Inc. The accident occurred at the intersection of Fulton Street and Barbey Street in Brooklyn. The only traffic control device at that intersection was a stop sign for vehicles entering the intersection from Barbey Street. Prior to the collision, the plaintiff was driving on Fulton Street and Rodriguez was driving on Barbey Street. The plaintiff testified at his deposition that the vehicle operated by Rodriguez failed to stop at the stop sign and struck the plaintiff's vehicle. Rodriguez testified at her deposition that she stopped her vehicle at the stop sign, and then pulled forward several feet into the intersection because her view of oncoming traffic on Fulton Street was blocked by a parked truck. Rodriguez indicated that she saw the plaintiff's vehicle approaching and waited for it to pass, but the plaintiff's vehicle collided with her vehicle.
In January 2017, the plaintiff commenced this action to recover damages for personal injuries. Thereafter, the plaintiff moved for summary judgment on the issue of liability and dismissing the defendants’ affirmative defenses alleging comparative negligence. In an order dated February 10, 2021, the Supreme Court, inter alia, granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability and denied that branch of the plaintiff's motion which was for summary judgment dismissing the defendants’ affirmative defenses alleging comparative negligence. The defendants then moved for leave to reargue, among other things, their opposition to that branch of the plaintiff's motion which was for summary judgment on the issue of liability. In an order dated September 9, 2021, the Supreme Court, inter alia, upon reargument, in effect, vacated the determination in the order dated February 10, 2021, granting that branch of the plaintiff's motion which was for summary judgment on the issue of liability, and thereupon, denied that branch of the plaintiff's motion. The plaintiff appeals from both orders.
"A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries" ( Tsyganash v. Auto Mall Fleet Mgt., Inc., 163 A.D.3d 1033, 1033–1034, 83 N.Y.S.3d 74 ). "A plaintiff is no longer required to show freedom from comparative fault in order to establish his or her prima facie entitlement to judgment as a matter of law on the issue of liability" ( Guido v. Dagnese, 214 A.D.3d 715, 717, 185 N.Y.S.3d 214 ). "Pursuant to Vehicle and Traffic Law § 1142(a), a driver entering an intersection controlled by a stop sign must yield the right-of-way to any other vehicle that is already in the intersection or that is approaching so closely as to constitute an immediate hazard" ( Cruz v. DiSalvo, 188 A.D.3d 986, 987, 135 N.Y.S.3d 447 ). "A violation of Vehicle and Traffic Law § 1142(a) constitutes negligence as a matter of law" ( Butt v. Lockwood, 173 A.D.3d 962, 963, 103 N.Y.S.3d 134 ).
Here, the plaintiff established, prima facie, that Rodriguez was negligent in failing to yield the right-of-way to the plaintiff's vehicle after stopping at the stop sign (see Spratley v. Lafortune, 176 A.D.3d 1247, 1248, 109 N.Y.S.3d 667 ; Lilaj v. Ferentinos, 126 A.D.3d 947, 948, 7 N.Y.S.3d 172 ; Williams v. Hayes, 103 A.D.3d 713, 714, 959 N.Y.S.2d 713 ; Amalfitano v. Rocco, 100 A.D.3d 939, 940, 954 N.Y.S.2d 644 ; Maliza v. Puerto–Rican Transp. Corp., 50 A.D.3d 650, 651–652, 854 N.Y.S.2d 763 ). In opposition to the plaintiff's prima facie showing of entitlement to judgment as a matter of law on the issue of liability, the defendants failed to raise a triable issue of fact. Accordingly, the Supreme Court should have, upon reargument, adhered to the determination in the order dated February 10, 2021, granting that branch of the plaintiff's motion which was for summary judgment on the issue of liability.
However, the Supreme Court properly denied that branch of the plaintiff's motion which was for summary judgment dismissing the defendants’ affirmative defenses alleging comparative negligence. The plaintiff failed to establish his prima facie entitlement to judgment as a matter of law dismissing those affirmative defenses, as he did not eliminate all triable issues of fact regarding whether he saw what there was to be seen through the proper use of his senses (see Gonzalez v. Gonzales, 212 A.D.3d 716, 717, 183 N.Y.S.3d 113 ; Blake v. Francis, 205 A.D.3d 671, 673, 165 N.Y.S.3d 754 ; Tornabene v. Seickel, 186 A.D.3d 645, 647, 129 N.Y.S.3d 110 ), whether he had enough time to avoid the collision (see Tornabene v. Seickel, 186 A.D.3d at 647, 129 N.Y.S.3d 110 ), and whether Rodriguez's violation of Vehicle and Traffic Law § 1142(a) was the sole proximate cause of the accident (see M.M.T. v. Relyea, 177 A.D.3d 1013, 1014, 114 N.Y.S.3d 385 ; Mark v. New York City Tr. Auth., 150 A.D.3d 980, 982, 55 N.Y.S.3d 128 ). Accordingly, the court properly denied that branch of the plaintiff's motion which was for summary judgment dismissing the defendants’ affirmative defenses alleging comparative negligence, without regard to the sufficiency of the defendants’ opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
The defendants’ remaining contentions are without merit.
CONNOLLY, J.P., MALTESE, WOOTEN and VOUTSINAS, JJ., concur.