| Duran v Simon |
| 2011 NY Slip Op 02838 [83 AD3d 654] |
| April 5, 2011 |
| Appellate Division, Second Department |
| Julio Duran, Plaintiff, v William H. Simon, Appellant, andDonaldo Rivera et al., Respondents. |
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In an action, inter alia, to recover damages for personal injuries, the defendant William H.Simon appeals from an order of the Supreme Court, Nassau County (Mahon, J.), enteredSeptember 23, 2010, which denied his motion for summary judgment dismissing the complaintand all cross claims insofar as asserted against him.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantWilliam H. Simon for summary judgment dismissing the complaint and all cross claims insofaras asserted against him is granted.
"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" (Laino v Lucchese, 35 AD3d 672,672 [2006]; see Gergis v Miccio, 39AD3d 468, 468 [2007]; Friedberg vCitiwide Auto Leasing, Inc., 22 AD3d 522, 522-523 [2005]). "A driver is required to seewhat is there to be seen . . . and a driver who has the right of way is entitled toanticipate that the other motorist will obey the traffic law requiring him or her to yield"(Laino v Lucchese, 35 AD3d at 672-673; see Gergis v Miccio, 39 AD3d at 468;Bongiovi v Hoffman, 18 AD3d686, 687 [2005]).
The appellant established, prima facie, his entitlement to judgment as a matter of law bydemonstrating that the defendant Catherine Rivera, who was faced with a stop sign at anintersection, negligently drove her vehicle into the intersection, in which the appellant wastravelling in his vehicle, without yielding the right-of-way to the appellant, and that this was thesole proximate cause of the accident (see Vehicle and Traffic Law § 1142 [a]). Inopposition, the defendants Donaldo Rivera and Catherine Rivera failed to raise a triable issue offact. Their contention that the appellant was negligent in the operation of his vehicle isunsupported by the record and based upon speculation (see Exime v Williams, 45 AD3d 633, 634 [2007]; Platt v Wolman, 29 AD3d 663,663 [2006]; McNamara vFishkowitz, 18 AD3d 721, 722 [2005]; Klein v Byalik, 1 AD3d 399, 400 [2003]). Accordingly, theappellant's motion for summary judgment dismissing the complaint and all cross claims insofaras asserted against him should have been granted. Angiolillo, J.P., Florio, Belen and Miller, JJ.,concur.