| Rahaman v Abodeledhman |
| 2009 NY Slip Op 05756 [64 AD3d 552] |
| July 7, 2009 |
| Appellate Division, Second Department |
| Roxi Rahaman et al., Respondents, v Hid Abodeledhmanet al., Respondents, and Mauz M. Terab et al., Appellants. |
—[*1] Napoli Bern Ripka, LLP, New York, N.Y. (Denise A. Rubin of counsel), forplaintiffs-respondents. Gerber & Gerber LLP, Brooklyn, N.Y. (Michael I. Josephs of counsel), fordefendants-respondents.
In an action to recover damages for personal injuries, the defendants Muaz M. Terab andGrace Gonzalez appeal from an order of the Supreme Court, Kings County (Schneier, J.), datedFebruary 1, 2008, which denied their motion for summary judgment dismissing the complaintand all cross claims insofar as asserted against them.
Ordered that the order is reversed, on the law, with one bill of costs payable by therespondents appearing separately and filing separate briefs, and the motion of the defendantsMuaz M. Terab and Grace Gonzalez for summary judgment dismissing the complaint and allcross claims insofar as asserted against them is granted.
The plaintiffs commenced this action to recover damages for injuries allegedly sustained in amotor vehicle accident. The plaintiffs were passengers in a taxicab driven by the defendant HidAbodeledhman in the course of his employment with the defendant Zoya Taxi Cab, Inc.(hereinafter Zoya Taxi). The taxicab collided at an intersection with a vehicle driven by thedefendant Muaz M. Terab and owned by the defendant Grace Gonzalez. There was a stop signgoverning traffic proceeding in Abodeledhman's direction. There was no traffic control devicecontrolling traffic proceeding in Terab's direction of travel. Terab and Gonzalez moved forsummary judgment dismissing the complaint and all cross claims insofar as asserted againstthem, arguing that Abodeledhman violated Vehicle and Traffic Law § 1142 (a) and§ 1172 (a) and that his actions were the sole proximate cause of the accident. The SupremeCourt denied the motion, finding that there was a triable issue of fact as to whether Terab wasnegligent. We disagree.
"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" (Klein [*2]vCrespo, 50 AD3d 745, 745 [2008]). "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" (id. at 745-746). However, "[t]here can be more than one proximate cause of anaccident" (Cox v Nunez, 23 AD3d427, 427 [2005]). Thus, a driver who lawfully enters an intersection may nevertheless befound partially at fault for an accident if that driver fails to use reasonable care to avoid acollision with another vehicle at an intersection (see Exime v Williams, 45 AD3d 633 [2007]).
Here, Terab and Gonzalez established their entitlement to judgment as a matter of law bysubmitting evidence demonstrating that Terab had the right-of-way, that because Abodeledhmanfailed to yield the right-of-way upon entering the intersection in violation of Vehicle and TrafficLaw § 1142 (a), he was negligent as a matter of law, and that Abodeledhman's negligencewas the sole proximate cause of the accident (see Klein v Crespo, 50 AD3d at 745;Ponticello v Wilhelm, 249 AD2d 459 [1998]). The question of whether Abodeledhmanactually stopped at the stop sign before entering the intersection, as he was required to do underVehicle and Traffic Law § 1172 (a), is not dispositive, as the evidence revealed thatwhether or not he stopped at the stop sign, he failed to yield to the defendant Terab's vehicle,which had the right-of-way (see Exime v Williams, 45 AD3d at 633).
In opposition, neither the plaintiffs nor Abodeledhman and Zoya Taxi raised a triable issueof fact as to any alleged comparative negligence of Terab. The speculative assertion ofAbodeledhman and Zoya Taxi that Terab was traveling at an excessive rate of speed isunsupported by the record. Under the circumstances of this case, Terab's deposition testimonythat he did not look down the street on which Abodeledhman's taxicab was traveling beforeentering the intersection, and that he did not see the taxicab at any time prior to the accident wereinsufficient to raise a triable issue of fact (see Mateiasevici v Daccordo, 34 AD3d 651 [2006]; Espinoza vLoor, 299 AD2d 167 [2002]; Gravina v Wakschal, 255 AD2d 291 [1998];Maxwell v Land-Saunders, 233 AD2d 303 [1996]). Terab was entitled to anticipate thatAbodeledhman would obey the traffic laws requiring him to yield (see Mateiasevici vDaccordo, 34 AD3d at 651). Accordingly, the Supreme Court should have granted themotion of Terab and Gonzalez for summary judgment dismissing the complaint and all crossclaims insofar as asserted against them. Skelos, J.P., Fisher, Leventhal and Lott, JJ., concur.