| Grossman v Spector |
| 2008 NY Slip Op 01710 [48 AD3d 750] |
| February 26, 2008 |
| Appellate Division, Second Department |
| Sam Grossman et al., Appellants, v Meredith D. Spector etal., Respondents. |
—[*1] Irwen C. Abrams, Brooklyn, N.Y. (Thomas D. Leff of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Kings County (Vaughan, J.), dated March 7, 2007, which denied theirmotion for summary judgment on the issue of liability.
Ordered that the order is reversed, on the law, with costs, the plaintiffs' motion for summaryjudgment on the issue of liability is granted, and the matter is remitted to the Supreme Court,Kings County, for a trial on the issue of damages.
On June 20, 2004 a vehicle operated by the defendant Meredith D. Spector (hereinafterMeredith) and owned by the defendant Jessica A. Spector collided with a vehicle operated by theplaintiff Sam Grossman and owned by the plaintiff Esther Grossman at the intersection ofAvenue J and Ocean Parkway in Brooklyn. At the time of the accident, the Spector vehicle wastraveling northbound in the service lane of Ocean Parkway, which was governed by a stop sign,while the Grossman vehicle was traveling westbound along Avenue J, which was governed by atraffic signal. The plaintiffs allege—and the defendants do not dispute—that at thetime of the accident, the traffic light governing traffic on Avenue J was green and therefore theGrossman vehicle had the right of way.
On the facts presented, the plaintiffs established their prima facie entitlement to judgment asa matter of law on the issue of liability by demonstrating that the negligence of Meredith, whoeither failed to stop at a stop sign or, upon stopping, failed to yield the right of way to theplaintiffs' [*2]vehicle, was the sole proximate cause of theaccident (see Odumbo v Perera, 27 AD3d 709 [2006]; Bongiovi v Hoffman, 18AD3d 686, 687 [2005]).
In opposition, Meredith submitted an affidavit in which she averred that the Grossmanvehicle was traveling at a speed of "at least forty (40) miles per hour at impact." However, thisestimate is plainly speculative given Meredith's earlier deposition testimony that she did notobserve the Grossman vehicle until it was "[a]bout a foot" from her vehicle, and could only"guess" at its speed (see Meliarenne v Prisco, 9 AD3d 353 [2004]).
Accordingly, the plaintiffs' motion for summary judgment on the issue of liability shouldhave been granted. Skelos, J.P., Fisher, Covello and Eng, JJ., concur.