Opinion
2015-05-05
Jose Ramon MARTINEZ, Plaintiff–Respondent, v. Robert COFER, et al., Defendants–Appellants.
Gallo, Vitucci, Klar, LLP, New York (Kimberly A. Ricciardi of counsel), for appellants. Ephrem J. Wertenteil, New York, for respondent.
Gallo, Vitucci, Klar, LLP, New York (Kimberly A. Ricciardi of counsel), for appellants. Ephrem J. Wertenteil, New York, for respondent.
TOM, J.P., ANDRIAS, SAXE, DeGRASSE, KAPNICK, JJ.
Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered March 31, 2014, which granted plaintiff's motion for partial summary judgment on the issue of liability, unanimously affirmed, without costs.
The accident giving rise to plaintiff's claim involved an intersection collision between plaintiff's vehicle, which was traveling on a highway that was not regulated by any traffic control device, and defendants' vehicle, which had come to a stop at a stop sign and then entered the intersection. Since plaintiff had the right of way (Vehicle and Traffic Law § 1142), he was “entitled to anticipate that other vehicles would obey the traffic laws that require them to yield” (Namisnak v. Martin, 244 A.D.2d 258, 260, 664 N.Y.S.2d 435 [1st Dept.1997]; see Jordan v. City of New York, 12 A.D.3d 326, 784 N.Y.S.2d 861 [1st Dept.2004] ). A “presumption of negligence” arises from the failure of a driver at a stop sign “to yield the right of way” to the vehicle on the highway (Murchison v. Incognoli, 5 A.D.3d 271, 271, 773 N.Y.S.2d 299 [1st Dept.2004] ). Defendants did not raise an issue of fact as to plaintiff's comparative negligence based on defendant Cofer's “bare speculation” that plaintiff must have been speeding because Cofer did not see plaintiff's car before they collided ( id.; see also Cadeau v. Gregorio, 104 A.D.3d 464, 961 N.Y.S.2d 106 [1st Dept.2013]; Szczotka v. Adler, 291 A.D.2d 444, 737 N.Y.S.2d 121 [2d Dept.2002]; compare Nevarez v. S.R.M. Mgt. Corp., 58 A.D.3d 295, 296, 867 N.Y.S.2d 431 [1st Dept.2008] [passenger saw other vehicle approaching “mad fast” prior to heavy impact] ).
Plaintiff's statement that he may have been driving five miles over the posted speed limit of 30 miles per hour was insufficient to raise an issue of fact as to comparative negligence since there is no evidence that it could have contributed to the collision ( see Heltz v. Barratt, 115 A.D.3d 1298, 983 N.Y.S.2d 160 [4th Dept.2014], affd.24 N.Y.3d 1185, 3 N.Y.S.3d 757, 27 N.E.3d 471 [2014]; Daniels v. Rumsey, 111 A.D.3d 1408, 1410, 975 N.Y.S.2d 303 [4th Dept.2013] ). We note that the police accident report submitted by defendants in opposition to the motion supports plaintiff's claim that his car was broadsided by defendants' van, not the other way around.