| Thompson v Schmitt |
| 2010 NY Slip Op 04774 [74 AD3d 789] |
| June 1, 2010 |
| Appellate Division, Second Department |
| Thomas W. Thompson, Respondent, v Peejay L. Schmittet al., Appellants. |
—[*1] Jay D. Umans, East Meadow, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendants appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Suffolk County (Tanenbaum, J.),dated October 8, 2009, as granted that branch of the plaintiff's motion which was for summaryjudgment on the issue of liability.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action to recover damages for injuries allegedly sustained byhim in a collision between the parties' vehicles at the intersection of Helen Avenue and GeorgeStreet in Smithtown. It is uncontested that a stop sign controls the traffic on Helen Avenue in thedirection in which the defendant driver was traveling and that George Street, upon which theplaintiff was traveling, was a through street with the right of way. In support of his motion forsummary judgment, the plaintiff submitted evidence that, as he drove northbound on GeorgeStreet, the defendant driver proceeded through the intersection and failed to stop or yield theright of way, causing the collision. In opposition, the defendant driver submitted an affidavit inwhich she averred that she stopped at the stop sign, looked both ways, saw no traffic on GeorgeStreet, and saw the plaintiff's vehicle for the first time when she was in the middle of theintersection and the plaintiff's vehicle was about one car length away traveling "at a fast rate ofspeed . . . about 25-30 MPH."
A driver who fails to yield the right of way after stopping at a stop sign is in violation ofVehicle and Traffic Law § 1142 (a) and is negligent as a matter of law (see Klein v Crespo, 50 AD3d 745,745 [2008]; Gergis v Miccio, 39AD3d 468, 468 [2007]). "A driver is required to see that which through proper use of his orher senses he or she should have seen," and the driver with the right of way "is entitled toanticipate that the other motorist will obey the traffic law requiring him or her to yield"(Klein v Crespo, 50 AD3d at 745-746; see Sirot v Troiano, 66 AD3d 763, 764 [2009]; Hull v Spagnoli, 44 AD3d 1007[2007]; Gergis v Miccio, 39 AD3d at 468). "The question of whether the driver stoppedat the stop sign is not dispositive where the evidence establishes that he or she failed to yieldeven if he or she did stop" (Goemans vCounty of Suffolk, 57 AD3d 478, 479 [2008]; see Maliza v Puerto-Rican Transp. Corp., 50 AD3d 650, 652[2008]; Morgan v Hachmann, 9AD3d 400, 400 [2004]).[*2]
Here, the plaintiff established, prima facie, hisentitlement to judgment as a matter of law on the issue of liability by demonstrating that thedefendant driver, who was faced with a stop sign at the intersection of Helen Avenue and GeorgeStreet, negligently entered the intersection without yielding the right of way to his approachingvehicle and that this was the sole proximate cause of the accident (see Vehicle andTraffic Law § 1142 [a]; Klein v Crespo, 50 AD3d at 745; Hull v Spagnoli,44 AD3d at 1007; Gergis v Miccio, 39 AD3d at 468-469). In opposition, the defendantsfailed to raise a triable issue of fact, proffering only speculative assertions, unsupported by therecord, that the plaintiff was driving at a "fast rate of speed" and failed to take reasonable evasiveaction to avoid the accident (see Khan vNelson, 68 AD3d 1062, 1063 [2009]; Mateiasevici v Daccordo, 34 AD3d 651, 652 [2006]; Platt v Wolman, 29 AD3d 663[2006]; McNamara v Fishkowitz,18 AD3d 721, 722 [2005]).
The parties' remaining contentions are without merit.
Accordingly, the Supreme Court properly granted that branch of the plaintiff's motion whichwas for summary judgment on the issue of liability. Rivera, J.P., Florio, Angiolillo and Lott, JJ.,concur.