| Zuleta v Quijada |
| 2012 NY Slip Op 02679 [94 AD3d 876] |
| April 10, 2012 |
| Appellate Division, Second Department |
| Elizabeth Zuleta, Respondent, v Kay S. Quijada et al.,Appellants. |
—[*1] Roura & Melamed, New York, N.Y. (Lawrence K. Katz of counsel), forrespondent.
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, Queens County (Markey, J.), datedJuly 8, 2011, as denied their motion for summary judgment dismissing the complaint.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thedefendants' motion for summary judgment dismissing the complaint is granted.
The plaintiff commenced this action to recover damages for injuries she allegedly sustainedon March 24, 2009, as a result of a two-car collision at the intersection of 44th Street andNewtown Road in Queens. It is undisputed that a stop sign controls traffic on Newtown Road,the one-way street on which the plaintiff was operating her vehicle. It is also undisputed that nostop sign or other traffic control device at that intersection controls traffic on 44th Street, theone-way street on which the defendants' vehicle was traveling. The defendants moved forsummary judgment dismissing the complaint. The Supreme Court denied the motion.
The evidence submitted in support of the defendants' motion, including the plaintiff'sdeposition testimony, established that the plaintiff entered the intersection without yielding theright-of-way and, thus, was negligent as a matter of law (see Vehicle and Traffic Law§ 1142 [a]; § 1172 [a]; Kotzias v Panagiotis, 91 AD3d 607 [2012]; Thompson v Schmitt, 74 AD3d789, 789-790 [2010]). It is immaterial that the plaintiff may have stopped at the stop signbefore proceeding into the intersection, because she did not have the right of way when sheproceeded (see Martin v Ali, 78AD3d 1135, 1136 [2010]; Goemansv County of Suffolk, 57 AD3d 478, 479 [2008]). The evidence submitted in support ofthe motion further established, prima facie, that the plaintiff's conduct was the sole proximatecause of the accident. The driver of the defendants' vehicle was entitled to anticipate that theplaintiff would obey the traffic law requiring her to yield (see Kotzias v Panagiotis, 91AD3d at 607; Martin v Ali, 78 AD3d at 1136; Goemans v County of Suffolk, 57AD3d at 479). Moreover, the plaintiff admitted that she did not see the defendants' vehicledespite the absence of any obstruction to her view, before she proceeded into the intersection,and that she was looking straight ahead when she entered the intersection. Drivers are required tosee with the proper use of their senses what they should have [*2]seen (see Goemans v County of Suffolk, 57 AD3d at 479;Spatola v Gelco Corp., 5 AD3d469, 470 [2004]).
The defendants thus established their prima facie entitlement to judgment as a matter of law.In opposition, the plaintiff failed to raise a triable issue of fact as to any negligence on the part ofthe defendants (see Martin v Ali, 78 AD3d at 1136-1137; Goemans v County ofSuffolk, 57 AD3d at 479). The plaintiff's contention that the driver of the defendants' vehiclemay have been operating the vehicle at an excessive speed is based on speculation, inasmuch asthe plaintiff admitted that she never saw the defendants' vehicle before the collision (seeThompson v Schmitt, 74 AD3d at 790; Stanford v Dushey, 71 AD3d 988 [2010]). Finally, given theunrebutted evidence that the plaintiff's negligence was the sole proximate cause of the collision,the identity of the driver of the defendants' vehicle is immaterial (cf. Kaplan v Duggan,39 AD2d 816, 817 [1972]). Accordingly, the Supreme Court should have granted the defendants'motion for summary judgment dismissing the complaint. Florio, J.P., Balkin, Lott and Miller, JJ.,concur.