| Dominguez v CCM Computers, Inc. |
| 2010 NY Slip Op 04729 [74 AD3d 728] |
| June 1, 2010 |
| Appellate Division, Second Department |
| Rosario Dominguez et al., Respondents, v CCMComputers, Inc., et al., Appellants, and Carmen A. Anderson et al.,Respondents. |
—[*1] Robert C. Fontanelli, P.C. (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J.Isaac and Jillian Rosen], of counsel), for plaintiffs-respondents. Mary Audi Bjork (Mead, Hecht, Conklin & Gallagher, LLP, Mamaroneck, N.Y. [ElizabethM. Hecht], of counsel), for defendants-respondents.
In an action, inter alia, to recover damages for personal injuries, etc., the defendants CCMComputers, Inc., and Bertram A. Ramassar appeal from an order of the Supreme Court, QueensCounty (Grays, J.), entered December 22, 2008, which granted the plaintiffs' motion forsummary judgment on the issue of liability insofar as asserted against them and granted the crossmotion of the defendants Carmen A. Anderson and Marcelino A. Morel for summary judgmentdismissing the complaint and all cross claims insofar as asserted against them.
Ordered that the appeal from so much of the order as granted that branch of the cross motionof the defendants Carmen A. Anderson and Marcelino A. Morel which was for summaryjudgment dismissing the complaint insofar as asserted against those defendants is dismissed, asthe appellants are not aggrieved by that portion of the order (see CPLR 5511); and it isfurther,
Ordered that the order is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the respondents.
A vehicle operated by the defendant Bertram A. Ramassar, and owned by the defendantCCM Computers, Inc. (hereinafter CCM), collided at an intersection in South Richmond Hillwith a vehicle operated by the defendant Marcelino A. Morel, and owned by the defendantCarmen A. Anderson, which was transporting the plaintiffs Rosario Dominguez and BrichellDominguez (hereinafter together the plaintiffs). At the time of the accident, the vehicle operatedby Ramassar was traveling southbound on 125th Street, which was governed by a stop sign,while the vehicle operated by Morel was traveling westbound on 97th Avenue, which was notgoverned by a stop sign.[*2]
On the facts presented, the plaintiffs established theirprima facie entitlement to judgment as a matter of law on the issue of liability against thedefendants CCM and Ramassar. "[A] driver who has the right-of-way is entitled to anticipatethat the other motorist will obey the traffic law requiring him or her to yield" (Gergis v Miccio, 39 AD3d 468,468 [2007]). In opposition, the defendants CCM and Ramassar failed to raise a triable issue offact. The evidence established that Ramassar failed to yield the right-of-way even if he did stopat the stop sign (see Grossman vSpector, 48 AD3d 750 [2008]; cf. McCain v Larosa, 41 AD3d 792, 793 [2007]). A driver isrequired to " 'see that which through proper use of [his or her] senses [he or she] should haveseen' " (Goemans v County ofSuffolk, 57 AD3d 478, 479 [2008], quoting Bongiovi v Hoffman, 18 AD3d 686, 687 [2005]). The assertionmade by Ramassar at his deposition that Morel was operating his vehicle at an excessive rate ofspeed when it entered the intersection was speculative and insufficient to raise a triable issue offact (see Falcone v Ibarra, 67 AD3d858 [2009]; Exime v Williams,45 AD3d 633 [2007]; Szczotka v Adler, 291 AD2d 444 [2002]).
Accordingly, the Supreme Court properly granted that branch of the plaintiffs' motion whichwas for summary judgment on the issue of liability insofar as asserted against CCM andRamassar. The Supreme Court also properly granted that branch of the cross motion of thedefendants Anderson and Morel which was for summary judgment dismissing the cross claimsasserted against them. Anderson and Morel established their prima facie entitlement to judgmentas a matter of law by demonstrating that Morel was not negligent. In opposition, CCM andRamassar failed to raise a triable issue of fact. Rivera, J.P., Leventhal, Hall and Sgroi, JJ.,concur.