| Maliza v Puerto-Rican Transp. Corp. |
| 2008 NY Slip Op 02975 [50 AD3d 650] |
| April 1, 2008 |
| Appellate Division, Second Department |
| Galo Maliza et al., Respondents, v Puerto-RicanTransportation Corp. et al., Respondents, and Roberto Luna,Appellant. |
—[*1] Terilli and Tintle, PLLC, New York, N.Y. (Giancarlo Terilli of counsel), forplaintiffs-respondents.
In an action to recover damages for personal injuries, the defendant Roberto Luna appealsfrom an order of the Supreme Court, Kings County (Jacobson, J.), dated September 27, 2006,which denied his motion for summary judgment, in effect, dismissing the complaint and all crossclaims insofar as asserted against him.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantRoberto Luna for summary judgment, in effect, dismissing the complaint and all cross claimsinsofar as asserted against him is granted.
The plaintiffs were passengers in a vehicle operated by the defendant Edison Moposita(hereinafter Moposita), which collided with a vehicle operated by the defendant Roberto Luna atthe intersection of Knickerbocker Avenue and Jefferson Street in Brooklyn. A stop sign at thesubject intersection controls traffic traveling on Jefferson Street, but no stop sign controls traffictraveling on Knickerbocker Avenue. At their depositions, the plaintiffs testified that Mopositabrought his vehicle to a complete stop at the stop sign on Jefferson Street before proceeding intothe intersection, where his vehicle was struck by Luna's vehicle. Luna subsequently moved forsummary judgment, contending that Moposita's negligence was the sole proximate cause of theaccident because Moposita came through the stop sign at a high rate of speed and failed to yieldthe right of way. The Supreme Court denied the motion, finding, inter alia, that there was anissue of fact as to whether [*2]Moposita stopped at the stop signprior to entering the intersection. We reverse.
"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 Exime v Williams,45 AD3d 633 [2007]; Marcel vChief Energy Corp., 38 AD3d 502 [2007]). Here, Luna made a prima facie showing ofhis entitlement to summary judgment by submitting evidence that Moposita failed to properlyobserve and yield to cross traffic before proceeding into the intersection (see Exime vWilliams, 45 AD3d at 634; Hull vSpagnoli, 44 AD3d 1007 [2007]; Gergis v Miccio, 39 AD3d at 468-469; Bongiovi v Hoffman, 18 AD3d686 [2005]). As the driver with the right-of-way, Luna was entitled to assume that Mopositawould obey the traffic laws requiring him to yield (see Hull v Spagnoli, 44 AD3d at1007; McCain v Larosa, 41 AD3d792, 793 [2007]; Gergis v Miccio, 39 AD3d at 468-469) "The question of whether[Moposita] stopped at the stop sign is not dispositive, since the evidence established that hefailed to yield even if he did stop" (Morgan v Hachmann, 9 AD3d 400, 400 [2004]; see Exime vWilliams, 45 AD3d at 633-634; McCain v Larosa, 41 AD3d at 793). Although adriver with a right-of-way also has a duty to use reasonable care to avoid a collision (see Mateiasevici v Daccordo, 34 AD3d651, 652 [2006]; Cox v Nunez,23 AD3d 427 [2005]), in opposition to the motion the plaintiffs failed to raise an issue offact as to whether Luna was comparatively negligent (see Hull v Spagnoli, 44 AD3d at1007; Mateiasevici v Daccordo, 34 AD3d at 652; Klein v Byalik, 1 AD3d 399 [2003]; Gravina v Wakschal,255 AD2d 291, 291-292 [1998]).
Furthermore, the plaintiffs' contention that Vehicle and Traffic Law § 1140 (a)required Luna to yield the right-of-way to a vehicle entering the intersection from a differenthighway is without merit. That provision pertains to uncontrolled intersections (seeVehicle and Traffic Law §§ 149, 1140 [c]), and is superseded by Vehicle and TrafficLaw §§ 1142 and 1172, which deal specifically with the rights and obligations ofvehicles at intersections controlled by stop signs (see Le Claire v Pratt, 270 AD2d 612,613 [2000]; Crespo v New York City Hous. Auth., 222 AD2d 300 [1995]). Miller, J.P.,Covello, Eng and Chambers, JJ., concur.