| Klein v Crespo |
| 2008 NY Slip Op 03175 [50 AD3d 745] |
| April 8, 2008 |
| Appellate Division, Second Department |
| Nicole Klein et al., Appellants-Respondents, v DavidCrespo et al., Respondents-Appellants, et al., Defendant, and Abraham Klein et al.,Respondents. |
—[*1] Mendolia & Stenz, Westbury, N.Y. (Yamile Al-Sullami of counsel), forrespondents-appellants. Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), forrespondents and for defendant We Transport, Inc. (one brief filed).
In an action to recover damages for personal injuries, the plaintiffs appeal from so much ofan order of the Supreme Court, Queens County (Grays, J.), dated January 26, 2007, as grantedthat branch of the motion of the defendants Abraham Klein and Robin Hood Country Day Carewhich was for summary judgment dismissing the complaint insofar as asserted against them, andthe defendants David Crespo and Wendy Holguin-Crespo cross-appeal from so much of the sameorder as granted that branch of the motion of the defendants Abraham Klein and Robin HoodCountry Day Care which was for summary judgment dismissing their cross claim insofar asasserted against those defendants.
Ordered that the order is affirmed, with one bill of costs payable by the appellants to therespondents Abraham Klein and Robin Hood Country Day School.
The plaintiffs commenced this action to recover damages allegedly arising from a motorvehicle accident. The infant plaintiffs were passengers in a vehicle driven by the defendantAbraham [*2]Klein in the course of his employment with thedefendant Robin Hood Country Day Care (hereinafter Robin Hood) that collided at anintersection with a vehicle driven by the defendant David Crespo and owned by the defendantWendy Holguin-Crespo. Klein was traveling south and Crespo was traveling east. There was astop sign in Crespo's direction of travel. There was no traffic control device in Klein's directionof travel. Klein and Robin Hood moved for summary judgment dismissing the complaint and allcross claims insofar as asserted against them. The Supreme Court granted that relief. We affirm.
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 (see Gergis v Miccio, 39 AD3d 468[2007]; Friedberg v Citiwide AutoLeasing, Inc., 22 AD3d 522 [2005]). A driver is required to see that which throughproper use of his or her senses he or she should have seen, and a driver who has the right-of-wayis entitled to anticipate that the other motorist will obey the traffic law requiring him or her toyield (see Gergis v Miccio, 39AD3d 468 [2007]; Friedberg vCitiwide Auto Leasing, Inc., 22 AD3d 522 [2005]). Here, Klein and Robin Hoodestablished, prima facie, their entitlement to judgment as a matter of law on the issue of liabilityby demonstrating that Crespo, who was faced with a stop sign at an intersection, negligentlyentered the intersection without yielding the right-of-way, and that this was the sole proximatecause of the accident (see Gergis vMiccio, 39 AD3d 468 [2007]; Friedberg v Citiwide Auto Leasing, Inc., 22 AD3d 522 [2005]). Inopposition, neither the plaintiffs, Crespo, nor Holguin-Crespo raised a triable issue of fact as tothe comparative negligence of either Klein or Robin Hood (see Gergis v Miccio, 39 AD3d 468 [2007]; Friedberg v Citiwide Auto Leasing, Inc.,22 AD3d 522 [2005]). Consequently, the Supreme Court properly awarded Klein andRobin Hood summary judgment dismissing the complaint and all cross claims insofar as assertedagainst them. Rivera, J.P., Ritter, Carni and Leventhal, JJ., concur.