| Exime v Williams |
| 2007 NY Slip Op 08990 [45 AD3d 633] |
| November 13, 2007 |
| Appellate Division, Second Department |
| Joseph Y. Exime et al., Respondents, v Royston Williams,Appellant. |
—[*1] Gregory E. Danenberg, New York, N.Y., for respondents.
In an action to recover damages for personal injuries, etc., the defendant appeals from anorder of the Supreme Court, Kings County (Bunyan J.), dated September 6, 2006, which deniedhis motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is granted.
"A driver who fails to yield the right-of-way after stopping at a stop sign controlling traffic isin violation of Vehicle and Traffic Law § 1142 (a) and is negligent as a matter of law" (Gergis v Miccio, 39 AD3d 468,468 [2007]; see Friedberg v CitiwideAuto Leasing, Inc., 22 AD3d 522, 523 [2005]; see also Perez v Paljevic, 31 AD3d 520 [2006]). However, therecan be more than one proximate cause of an accident (see Cox v Nunez, 23 AD3d 427[2005]). Evidence that one driver"ran" a stop sign does not preclude a finding that comparative negligence on the part of the otherdriver contributed to the accident (see Cox v Nunez, 23 AD3d at 427). Thus, "[u]nder thedoctrine of comparative negligence, 'a driver who lawfully enters an intersection . . .may still be found partially at fault for an accident if he or she fails to use reasonable care toavoid a collision with another vehicle in the intersection' " (Romano v 202 Corp., 305AD2d 576, 577 [2003], quoting Siegel v Sweeney, 266 AD2d 200, 202 [1999]; seeCox v Nunez, 23 AD3d at 427).
The defendant established his prima facie entitlement to judgment as a matter of law [*2]by submitting evidence indicating that the plaintiff Joseph Y.Exime, while operating a motor vehicle, failed to yield the right-of-way upon entering anintersection in violation of Vehicle and Traffic Law § 1142 (a), and thus that he wasnegligent as a matter of law (seeMcCain v Larosa, 41 AD3d 792, 793 [2007]; Gergis v Miccio, 39 AD3d at468-469; Laino v Lucchese, 35AD3d 672, 673 [2006]; McNamarav Fishkowitz, 18 AD3d 721, 721-722 [2005]; Meliarenne v Prisco, 9 AD3d 353, 354 [2004]). The defendant wasentitled to assume that Exime would obey the traffic laws requiring him to yield (see McCainv Larosa, 41 AD3d at 793). The question of whether Exime actually stopped at the stop signbefore entering the intersection, as he was required to do, is not dispositive, as the evidenceindicated that, whether or not he stopped at the stop sign, he failed to yield to a vehicle with theright-of-way (see McCain v Larosa, 41 AD3d at 793).
In opposition to the defendant's motion, the plaintiffs contended that the defendant's vehiclewas traveling at an excessive rate of speed as it entered the intersection. However, theseassertions, insofar as raised in Exime's affidavit, were speculative, as Exime testified at hisdeposition that he never saw the defendant's vehicle prior to the collision. The affidavit of theplaintiffs' expert to this effect was speculative, conclusory, and insufficient to raise an issue offact so as to defeat the defendant's motion for summary judgment (see McCain v Larosa,41 AD3d at 793; Youthkins v Cascio, 298 AD2d 386, 387 [2002], affd 99NY2d 638 [2003]; Terwilliger v Dawes, 204 AD2d 433, 433-434 [1994]; cf. Gergis vMiccio, 39 AD3d at 469; Laino v Lucchese, 35 AD3d at 673; McNamara vFishkowitz, 18 AD3d at 721-722; Trzepacz v Jara, 11 AD3d 531 [2004]; Meliarenne v Prisco,9 AD3d at 354; Mora v Garcia,3 AD3d 478, 479 [2004]; Meretskaya v Logozzo, 2 AD3d 599, 600 [2003]). Accordingly, asthe plaintiff failed to raise a triable issue of fact, the Supreme Court should have granted thedefendant's motion for summary judgment dismissing the complaint. Spolzino, J.P., Krausman,Carni and Dickerson, JJ., concur.