| Mohammad v Ning |
| 2010 NY Slip Op 03294 [72 AD3d 913] |
| April 20, 2010 |
| Appellate Division, Second Department |
| Khawaja Mohammad, Respondent, v Yuehua Ning,Appellant. |
—[*1] A. Ali Yusaf, New York, N.Y. (Stephen A. Skor of counsel), for respondent.
In an action, inter alia, to recover damages for personal injuries, the defendant appeals froman order of the Supreme Court, Kings County (Starkey, J.), dated November 19, 2008, whichgranted the plaintiff's motion for summary judgment on the issue of liability.
Ordered that the order is affirmed, with costs.
The plaintiff was operating a motor vehicle which collided with a vehicle operated by thedefendant at the intersection of 85th Street and 25th Avenue in Queens. Thereafter, the plaintiffcommenced this action against the defendant to recover damages for personal injuries and forproperty damage. The plaintiff subsequently moved for summary judgment on the issue ofliability, contending that the defendant's negligence was the sole proximate cause of the accidentbecause the defendant, without stopping, proceeded through a stop sign at a high rate of speedand failed to yield the right-of-way.
The plaintiff demonstrated his prima facie entitlement to judgment as a matter of law on theissue of liability by establishing that the defendant's vehicle proceeded into an intersectioncontrolled by a stop sign without yielding the right-of-way to his approaching vehicle(see Vehicle and Traffic Law § 1142 [a]). The evidence submitted in support ofthe motion established that the defendant failed to properly observe and yield to cross trafficbefore proceeding into the intersection (see Exime v Williams, 45 AD3d 633, 634 [2007]; Hull v Spagnoli, 44 AD3d 1007[2007]; Gergis v Miccio, 39 AD3d468, 468-469 [2007]; Bongiovi vHoffman, 18 AD3d 686 [2005]). It is undisputed that a stop sign at the subjectintersection controls traffic traveling on 25th Avenue in the direction in which the defendant wastraveling, but that no stop sign controls traffic traveling on 85th Street in the direction in whichthe plaintiff was traveling. As the driver with the right-of-way, the plaintiff was entitled toassume that the defendant would obey the traffic laws requiring him to yield (see Hull vSpagnoli, 44 AD3d at 1007; McCain v Larosa, 41 AD3d 792, 793 [2007]; Gergis vMiccio, 39 AD3d at 468).
In opposition to the plaintiff's prima facie showing, the defendant failed to raise a triableissue of fact. In his affidavit in opposition, the defendant averred that, contrary to the [*2]plaintiff's contention, he brought his vehicle to a complete stop atthe stop sign on 25th Avenue before proceeding into the intersection. However, "[a] driver whofails to yield the right-of-way after stopping at a stop sign controlling traffic is in violation ofVehicle and Traffic Law § 1142 (a) and is negligent as a matter of law" (Gergis vMiccio, 39 AD3d at 468; see Exime v Williams, 45 AD3d at 633; Marcel v Chief Energy Corp., 38AD3d 502, 503 [2007]). Thus, the question of whether the defendant stopped at the stopsign is not dispositive, since the evidence established that he failed to yield even if he stopped(see Exime v Williams, 45 AD3d at 634; McCain v Larosa, 41 AD3d at 793; Morgan v Hachmann, 9 AD3d400, 400 [2004]).
The defendant also averred that, during the period of time when he remained stopped at theintersection, there was no traffic approaching the intersection from either direction on 85thStreet. According to the defendant, he did not see the plaintiff's vehicle until the defendant'svehicle was already in the intersection. A driver is negligent where an accident occurs becausehe or she fails to "see that which through proper use of [his or her] senses [he or she] should haveseen" (Bongiovi v Hoffman, 18 AD3d at 687 [internal quotation marks omitted]; seeBolta v Lohan, 242 AD2d 356 [1997]).
The defendant's remaining contentions are either improperly raised for the first time onappeal or without merit.
Accordingly, since there are no triable issues of fact, the Supreme Court properly granted theplaintiff's motion for summary judgment on the issue of liability. Santucci, J.P., Angiolillo,Leventhal and Lott, JJ., concur.