Opinion
Index No. 503500/2021 Mot. Seq. No. 1
05-11-2022
STEVE J. POLICART, Plaintiff, v. WHEELS LT et al., Defendants,
Unpublished Opinion
PRESENT: HON. RICHARD VELASQUEZ Justice.
DECISION AND ORDER
Richard Velasquez Judge:
The following papers NYSCEF Doc #'s 10 to 23 read on this motion:
Papers NYSCEF DOC NO.'s
Notice of Motion/Order to Show Cause' Affidavits (Affirmations) Annexed __10-18
Opposing Affidavits (Affirmations)__ 20-22
Reply Affidavits__ 23
After having heard Oral Argument on MAY 11, 2022, and upon review of the foregoing submissions herein the court finds as follows:
Plaintiff moves pursuant to 3212 for summary judgment on the issue of liability. (MS#1). Defendant opposes the same.
ANALYSIS
It is well established that a moving party for summary judgment must make a prima facie showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issue of fact. Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853 (1985). Once there is a prima facie showing, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form to establish material issues of fact, which require a trial of the action. Zuckerman v. City of New York, 49 N.Y.2d 557 (1980); Alvarez v. Prospect Hosp., 68 N.Y.2d 320 (1986). However, where the moving party fails to make a prima facie showing, the motion must be denied regardless of the sufficiency of the opposing party's papers. A motion for summary judgment will be granted "if, upon ail the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing the judgment in favor of any party". CPLR 3212 (b). The "motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact." Id.
It is well established that "where a driver enters an intersection with the right-of-way....and it is' undisputed that the other vehicle entered the intersection from a perpendicular side street which was controlled by a stop sign and collided with the' side of the other vehicle that had the right-of-way...under no view of these facts could the I driver with the right of way be found to have acted negligently..." (see Perez v Brux Cab Corp., 251 A.D.2d 157 [1998]; Namisnak v Martin, 244 A.D.2d 258, 260 [1997]); quoting Rivera v. Water Boy, Inc., 144 A.D.3d 884, 884-85, 41 N.Y.S.3d 545 (NY A.D. 2016).
In the present case, the plaintiff established their prima facie entitlement to judgment as a matter of law on the issue of liability by demonstrating that the defendant, who either failed to stop at a stop sign or, upon stopping, failed to yield the right of way to the plaintiffs vehicle, was the sole proximate cause of the accident (see Vehicle and Traffic Law § 1142[a]; Bongiovi v. Hoffman, 18 A.D.3d 686, 687, 795 N.Y.S.2d 354; Willis v. Fink, 7 A.D.3d 519, 520, 775 N.Y.S.2d 587; cf. Rossani v. Rana, 8 A.D.3d 548, 549, 779 N.Y.S.2d 211). In the present case, the plaintiff established prima facie entitlement to judgment as a matter of law by establishing that the defendant's vehicle proceeded into t the intersection controlled by a stop sign without yielding the right-of-way to the plaintiffs approaching vehicle in violation of Vehicle and Traffic Law § 1142(a). The evidence submitted by the plaintiffs in support of their motion established, prima facie, that the defendant failed to properly observe and yield to cross traffic before proceeding into the intersection (see Mohammad v. Ning, 72 A.D.3d 913, 914, 899 N.Y.S.2d 356; Exime v. Williams, 45 A.D.3d 633, 634, 845 N.Y.S.2d 450; Hull v. Spagnoli, 44 A.D.3d 1007, 1007, 844 N.Y.S.2d 416; Gergis v. Miccio, 39 A.D.3d 468, 468-469, 834 N.Y.S.2d 253; Bongidvi v. Hoffman, 18 A.D.3d 686, 687, 795 N.Y.S.2d 354), and that this was the sole proximate cause of the accident.
In opposition to the plaintiffs prima facie showing, the defendant failed to raise a triable issue of fact. "'[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'" (Mohammad v. Ning, 72 A.D.3d at 914-915, 899 N.Y.S.2d 356, quoting Gergis v. Miccio, 39 A.D.3d at 468, 834 N.Y.S.2d 253; see Exime v. Williams, 45 A.D.3d at 633, 845 N.Y.S.2d 450; Marcel v. Chief Energy Corp., 38 A.D.3d 502, 503, 832 N.Y.S.2d 61); quoting, Briggs v. Russo, 98 A.D.3d 547, 547-48, 949 N.Y.S.2d 719, 721 (2d Dep't 2012). Therefore, the question of whether the defendant stopped the vehicle at the stop sign is not dispositive, since the evidence established that defendant failed to yield the right-of-way even if defendant did stop (see Mohammad v. Ning, 72 A.D.3d at 915, 899 N.Y.S.2d 356; Exime v. Williams, 45 A.D.3d at 634, 845 N.Y.S.2d 450; McCain v. Larosa, 41 A.D.3d 792, 793, 838 N.Y.S.2d 663; Morgan v. Hachmann, 9 A.D.3d 400, 400, 780 N.Y.S.2d 33); quoting Briggs v. Russo, 98 A.D.3d 547, 548, 949 N.Y.S.2d 719, 721 (2d Dep't 2012). Additionally, the "driver who had the right of way was entitled to anticipate that the driver with the stop sign would obey the traffic law requiring them to yield" (Hull v. Spagnoli, 44 A.D.3d 1007, 1007, 844 N.Y.S.2d 416; see Mohammad v. Ning, 72 A.D.3d at 914, 899 N.Y.S.2d 356; McCain v. Larosa, 41 A.D.3d 792, 793, 838 N.Y.S.2d 663; Gergis v. Miccio, 39 A.D.3d at 468, 834 N.Y.S.2d 253); quoting, Briggs v. Russo, 98 A.D.3d 547, 548, 949 N.Y.S.2d 719, 722 (2d Dep't 2012). In opposition to the motion, the defendant failed to submit sufficient evidence in admissible form to raise a triable issue of fact as to whether the plaintiff was negligent (see Rieman v. Smith, 302 A.D.2d 510, 755 N.Y.S.2d 256; Szczotka v. Adler, 291 A.D.2d 444, 737 N.Y.S.2d 121). Defendants' contention that plaintiff was speeding, is speculative and, as such, was insufficient to defeat the plaintiffs motion for summary judgment (see Rieman v. Smith, supra; Szczotka v. Adler, supra); quoting, Carabella v. Saad, 29 A.D.3d 618, 619, 815 N.Y.S.2d 199, 200 (2006).
Accordingly, the plaintiffs motion for summary judgment as to liability is hereby granted, for the reasons stated above. (MS#1).
This constitutes the Decision/Order of the court.