| Wesh v Laidlaw |
| 2009 NY Slip Op 01110 [59 AD3d 534] |
| February 10, 2009 |
| Appellate Division, Second Department |
| Neddy Wesh, Respondent, v Frank Laidlaw et al.,Appellants. |
—[*1] Steven C. Rauchberg, P.C., New York, N.Y., for respondent.
In an action to recover damages for personal injuries, etc., the defendants appeal from anorder of the Supreme Court, Queens County (O'Donoghue, J.), dated January 28, 2008, whichdenied their motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is granted.
On May 14, 2005 at the intersection of 104th Avenue and 189th Street in Queens, atwo-vehicle collision occurred between a vehicle owned and operated by the plaintiff NeddyWesh and a vehicle operated by the defendant Frank Laidlaw and jointly owned by Laidlaw andthe defendant Jennifer Hay (hereinafter together the defendants). The plaintiff commenced thisaction to recover damages for injuries he allegedly sustained in the accident. Subsequently, thedefendants moved for summary judgment dismissing the complaint on the ground that theplaintiff's conduct was the sole proximate cause of the accident because, in contravention of astop sign on 189th Street, the plaintiff failed to yield the right-of-way to the defendants' vehicletraveling on 104th Avenue. In support, the defendants submitted, inter alia, the depositiontranscripts of Laidlaw and the plaintiff, which, taken together, established that the plaintiffstopped his vehicle at the stop sign on 189th Street, saw the defendants' vehicle turn onto 104thAvenue one block from the subject intersection, and did not yield to the defendants' vehicledespite knowing that the defendants' vehicle was not controlled by a traffic device or sign.Therefore, the defendants established their prima facie entitlement to judgment as a matter of lawby demonstrating that the plaintiff failed to yield the right-of-way in violation of Vehicle &Traffic Law § 1142 (a) (see Vehicle[*2]& TrafficLaw § 1142 (a); Mei Yan Zhangv Santana, 52 AD3d 484, 485-486 [2008]; Gergis v Miccio, 39 AD3d 468, 468-469 [2007]; Laino v Lucchese, 35 AD3d 672[2006]). Further, as Laidlaw's vehicle had the right-of-way, he was entitled to anticipate that theplaintiff would obey the stop sign requiring the plaintiff to yield the right-of-way to thedefendants' vehicle (see Goemans vCounty of Suffolk, 57 AD3d 478 [2008]; Laino v Lucchese, 35 AD3d at672-673; Platt v Wolman, 29 AD3d663 [2006]).
In opposition, the plaintiff submitted an affirmation of his counsel and two photographsallegedly depicting the damage to the front of the defendants' vehicle. The affirmation of theplaintiff's counsel was insufficient to raise a triable issue of fact, as he had no personalknowledge of the accident (see Zuckerman v City of New York, 49 NY2d 557, 563[1980]). Moreover, without more, the two photographs allegedly depicting the damage to thedefendants' vehicle failed to raise a triable issue of fact as to whether Laidlaw was negligent.Rivera, J.P., Miller, Carni and McCarthy, JJ., concur.