| Barbato v Maloney |
| 2012 NY Slip Op 03123 [94 AD3d 1028] |
| April 24, 2012 |
| Appellate Division, Second Department |
| John S. Barbato, Respondent, v Diane E. Maloney et al.,Respondents, and Bryan R. Piotrowski, Appellant. |
—[*1] Edward R. Young & Associates, West Babylon, N.Y. (Seth I. Fields of counsel), forplaintiff-respondent. Gold, Stewart, Benes, LLP, Bellmore, N.Y. (Christopher J. Benes of counsel), fordefendants-respondents.
In an action to recover damages for personal injuries, the defendant Bryan R. Piotrowskiappeals from an order of the Supreme Court, Nassau County (Iannacci, J.), entered May 10,2011, which denied his motion, in effect, for summary judgment dismissing the complaintinsofar as asserted against him and the cross claim.
Ordered that the order is reversed, on the law, with one bill of costs payable by therespondents appearing separately and filing separate briefs, and the motion of the defendantBryan R. Piotrowski, in effect, for summary judgment dismissing the complaint insofar asasserted against him and the cross claim is granted.
On May 11, 2008, at the intersection of Front Street and Park Boulevard in Massapequa, theplaintiff, who was operating a motorcycle westbound on Front Street, collided with a vehicleoperated by the defendant Bryan R. Piotrowski on northbound Park Boulevard. The plaintiffalleges that the motorcycle he was operating was owned by the defendant Diane E. Maloney andnegligently entrusted to him by that defendant and her son, the defendant Matthew Maloney(hereinafter together the Maloneys). It is undisputed that Front Street is governed by a stop signin the plaintiff's direction of travel but Park Boulevard is not governed by a traffic control devicein Piotrowski's direction of travel. Piotrowski subsequently moved, in effect, for summaryjudgment dismissing the complaint insofar as asserted against him and the cross claim. TheSupreme Court denied the motion. Piotrowski appeals, and we reverse.
Piotrowski established his prima facie entitlement to judgment as a matter of law bysubmitting evidence that the plaintiff, who was traveling at a fast rate of speed, failed to stop atthe stop sign and failed to yield to Piotrowski's vehicle, which had the right of way, in violationof Vehicle and Traffic Law § 1142 (a) (see Gallagher v McCurty, 85 AD3d 1109 [2011]; Vainer vDiSalvo, 79 [*2]AD3d 1023, 1024 [2010]; Yelder v Walters, 64 AD3d 762,763-764 [2009]; Lupowitz v Fogarty, 295 AD2d 576 [2002]).
In opposition, the plaintiff and the Maloneys failed to raise a triable issue of fact as to anyalleged comparative negligence of Piotrowski. "Under the circumstances of this case[Piotrowski's] deposition testimony that he did not look down [Front] street . . .before entering the intersection, and that he did not see the [motorcycle] at any time prior to theaccident were insufficient to raise a triable issue of fact" (Rahaman v Abodeledhman, 64 AD3d 552, 553-554 [2009]; seeEspinoza v Loor, 299 AD2d 167, 168 [2002]; Jenkins v Alexander, 9 AD3d 286, 287 [2004]; Gravina vWakschal, 255 AD2d 291, 291-292 [1998]; see also Dimou v Iatauro, 72 AD3d 732, 733 [2010]; cf. Nuziale v Paper Transp. of Green BayInc., 39 AD3d 833, 835 [2007]). While a driver is required to "see that which throughproper use of [his or her] senses [he or she] should have seen, a driver who has the right-of-wayis entitled to anticipate that the other motorist will obey the traffic law requiring him or her toyield" (Vainer v DiSalvo, 79 AD3d at 1024 [citations and internal quotation marksomitted]). Moreover, "a driver with the right-of-way who has only seconds to react to a vehiclewhich has failed to yield is not comparatively negligent for failing to avoid the collision"(Yelder v Walters, 64 AD3d at 764).
Accordingly, the Supreme Court should have granted Piotrowski's motion. Dillon, J.P.,Angiolillo, Belen and Cohen, JJ., concur.