Opinion
2018-11929 Index No. 702486/18
11-27-2019
Martha A. BALLADARES, et al., Appellants, v. CITY OF NEW YORK, et al., Respondents.
Skip Alan LeBlang, New York, NY, for appellants. James E. Johnson, Corporation Counsel, New York, N.Y. (Claude S. Platton and Tahirih M. Sadrieh of counsel), for respondents.
Skip Alan LeBlang, New York, NY, for appellants.
James E. Johnson, Corporation Counsel, New York, N.Y. (Claude S. Platton and Tahirih M. Sadrieh of counsel), for respondents.
ALAN D. SCHEINKMAN, P.J., ROBERT J. MILLER, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ.
DECISION & ORDER ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the plaintiffs' motion which were for summary judgment on the issue of liability and dismissing the first affirmative defense are granted.
The plaintiffs were passengers in a vehicle operated by a nonparty when it collided, at the T-intersection of Alderton Street and Asquith Crescent in Queens, with a vehicle operated by the defendant Stephen Kuo (hereinafter the defendant driver) and owned by the defendant City of New York. The plaintiffs' vehicle was traveling in an easterly direction on Alderton Street, which was not governed by a traffic control device at its intersection with Asquith Crescent. The defendants' vehicle was traveling in a northerly direction on Asquith Crescent, which came to an end at its intersection with Alderton Street and was governed by a stop sign at the subject intersection. The defendants' vehicle was making a left turn at the intersection when the collision occurred.
The plaintiffs commenced this personal injury action against the defendants. Subsequently, the plaintiffs moved for summary judgment on the issue of liability and dismissing various affirmative defenses asserted by the defendants. The Supreme Court, inter alia, denied those branches of the plaintiffs' motion which were for summary judgment on the issue of liability and dismissing the first affirmative defense, alleging comparative negligence. The plaintiffs appeal.
"A driver who fails to yield the right of way after stopping at a stop sign controlling traffic is in violation of Vehicle and Traffic Law § 1142(a) and is negligent as a matter of law" ( Laino v. Lucchese, 35 A.D.3d 672, 672, 827 N.Y.S.2d 249 ; see Fuertes v. City of New York, 146 A.D.3d 936, 937, 45 N.Y.S.3d 562 ; Francavilla v. Doyno, 96 A.D.3d 714, 715, 945 N.Y.S.2d 425 ). Further, the question of whether the driver stopped at the stop sign is not dispositive where the evidence establishes that the driver failed to yield after initially stopping (see Kraynova v. Lowy, 166 A.D.3d 600, 602, 87 N.Y.S.3d 653 ; Hatton v. Lara, 142 A.D.3d 1047, 1048, 37 N.Y.S.3d 604 ; Lilaj v. Ferentinos, 126 A.D.3d 947, 7 N.Y.S.3d 172 ; Williams v. Hayes, 103 A.D.3d 713, 714, 959 N.Y.S.2d 713 ). "A driver with the right-of-way is entitled to anticipate that a motorist will obey traffic laws which require him or her to yield" ( Fuertes v. City of New York, 146 A.D.3d at 937, 45 N.Y.S.3d 562 ; Luke v. McFadden, 119 A.D.3d 533, 987 N.Y.S.2d 909 ; Francavilla v. Doyno, 96 A.D.3d at 715, 945 N.Y.S.2d 425 ). "Although a driver with a right-of-way also has a duty to use reasonable care to avoid a collision, ... a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision" ( Yelder v. Walters, 64 A.D.3d 762, 764, 883 N.Y.S.2d 290 [citations omitted]; see Giwa v. Bloom, 154 A.D.3d 921, 921–922, 62 N.Y.S.3d 527 ; Fuertes v. City of New York, 146 A.D.3d at 937, 45 N.Y.S.3d 562 ; Bennett v. Granata, 118 A.D.3d 652, 653, 987 N.Y.S.2d 424 ).
"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 ; see Rodriguez v. City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898, 101 N.E.3d 366 ). "To be entitled to partial summary judgment a plaintiff does not bear the ... burden of establishing ... the absence of his or her own comparative fault" ( Rodriguez v. City of New York, 31 N.Y.3d at 324–325, 76 N.Y.S.3d 898, 101 N.E.3d 366 ; see Odetalla v. Rodriguez, 165 A.D.3d 826, 85 N.Y.S.3d 560 ; Outar v. Sumner, 164 A.D.3d 1356, 81 N.Y.S.3d 751 ; Edgerton v. City of New York, 160 A.D.3d 809, 811, 74 N.Y.S.3d 617 ). Even though a plaintiff is no longer required to establish his or her freedom from comparative negligence, the issue of a plaintiff's comparative negligence may be decided in the context of a summary judgment motion where, as here, the plaintiff moved for summary judgment dismissing a defendant's affirmative defense of comparative negligence (see Wray v. Galella, 172 A.D.3d 1446, 1447, 101 N.Y.S.3d 401 ; Poon v. Nisanov, 162 A.D.3d 804, 808, 79 N.Y.S.3d 227 ). Here, in support of their motion, the plaintiffs submitted evidence sufficient to establish, prima facie, that the defendant driver was negligent in failing to see what was there to be seen and in entering the intersection without yielding the right-of-way, even if he did initially stop at the stop sign (see Vehicle and Traffic Law §§ 1142[a] ; 1172[a]; Enriquez v. Joseph, 169 A.D.3d 1008, 1009–1010, 94 N.Y.S.3d 599 ; Shashaty v. Gavitt, 158 A.D.3d 830, 832, 71 N.Y.S.3d 560 ; Fuertes v. City of New York, 146 A.D.3d at 937, 45 N.Y.S.3d 562 ). With respect to the issue of comparative negligence, the plaintiffs demonstrated, prima facie, that they were innocent passengers who did not contribute to the happening of the accident. The right of the plaintiffs, as innocent passengers, to summary judgment is not "restricted by potential issues of comparative negligence" which may exist as between the defendant driver and the driver of the host vehicle ( Medina v. Rodriguez, 92 A.D.3d 850, 850, 939 N.Y.S.2d 514 ; see Jung v. Glover, 169 A.D.3d 782, 783, 93 N.Y.S.3d 390 ; Anzel v. Pistorino, 105 A.D.3d 784, 786, 962 N.Y.S.2d 700 ; Silberman v. Surrey Cadillac Limousine Serv., 109 A.D.2d 833, 486 N.Y.S.2d 357 ). In opposition, the defendants failed to raise a triable issue of fact.
The defendants' contention that the plaintiffs' motion was premature is without merit (see CPLR 3212[f] ).
Accordingly, the Supreme Court should have granted those branches of the plaintiffs' motion which were for summary judgment on the issue of liability and dismissing the first affirmative defense, alleging comparative negligence.
SCHEINKMAN, P.J., MILLER, MALTESE and LASALLE, JJ., concur.