| Briggs v Russo |
| 2012 NY Slip Op 05901 [98 AD3d 547] |
| August 8, 2012 |
| Appellate Division, Second Department |
| Carol Briggs, Appellant, v Gina C. Russo,Respondent. |
—[*1] Adams, Hanson, Rego, Carlin, Hughes, Kaplan and Fishbein, Lake Success, N.Y.(Jacqueline Cabrera of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Grays, J.), dated June 17, 2011, which granted thedefendant's motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
On or about April 29, 2007, the plaintiff and the defendant were involved in a motor vehicleaccident at the intersection of Avenue V and West 11th Street in Brooklyn. It is undisputed that,at the subject intersection, the plaintiff's route of travel on West 11th Street was governed by astop sign, and that the defendant did not have any traffic control device governing her travel onAvenue V. It is also undisputed that the accident occurred in the middle of the intersection, andthat the front of the plaintiff's vehicle struck the center or rear of the passenger side of thedefendant's vehicle. The plaintiff commenced this action to recover damages for personalinjuries, and, after joining issue, the defendant moved for summary judgment dismissing thecomplaint. The Supreme Court granted the defendant's motion. The plaintiff appeals, and weaffirm.
The defendant established her prima facie entitlement to judgment as a matter of law byestablishing that the plaintiff's vehicle proceeded into the intersection controlled by a stop signwithout yielding the right-of-way to the defendant's approaching vehicle in violation of Vehicleand Traffic Law § 1142 (a). The evidence submitted by the defendant in support of hermotion established, prima facie, that the plaintiff failed to properly observe and yield to crosstraffic before proceeding into the intersection (see Mohammad v Ning, 72 AD3d 913, 914 [2010]; Exime v Williams, 45 AD3d 633,634 [2007]; Hull v Spagnoli, 44AD3d 1007, 1007 [2007]; Gergis vMiccio, 39 AD3d 468, 468-469 [2007]; [*2]Bongiovi v Hoffman, 18 AD3d686, 687 [2005]), and that this was the sole proximate cause of the accident.
In opposition to the defendant's prima facie showing, the plaintiff failed to raise a triableissue of fact. In her affidavit in opposition, the plaintiff stated that, contrary to the defendant'sclaim that she failed to stop her vehicle at the stop sign, she stopped her vehicle at the stop signfor approximately four to five seconds before proceeding into the intersection. "However, '[a]driver who fails to yield the right-of-way after stopping at a stop sign controlling traffic is inviolation of Vehicle and Traffic Law § 1142 (a) and is negligent as a matter of law' "(Mohammad v Ning, 72 AD3d at 914-915, quoting Gergis v Miccio, 39 AD3d at468; see Exime v Williams, 45 AD3d at 633; Marcel v Chief Energy Corp., 38 AD3d 502, 503 [2007]). Thus, thequestion of whether the plaintiff stopped her vehicle at the stop sign is not dispositive, since theevidence established that she failed to yield the right-of-way even if she did stop (seeMohammad v Ning, 72 AD3d at 915; Exime v Williams, 45 AD3d at 634; McCain v Larosa, 41 AD3d 792,793 [2007]; Morgan v Hachmann, 9AD3d 400, 400 [2004]).
The plaintiff also stated in her affidavit that, while her vehicle remained stopped at the stopsign, she did not observe any traffic approaching the intersection on Avenue V from eitherdirection, and that, as she entered the intersection, she again looked to her left, and again did notsee any oncoming vehicles. She stated that, when she was in the middle of the intersection,"suddenly and without warning, [she] felt a heavy impact to the front of [her] vehicle." Thisstatement did not raise a triable issue of fact, since "[a] driver is negligent where an accidentoccurs because he or she fails to 'see that which through proper use of [his or her] senses [he orshe] should have seen' " (Mohammad v Ning, 72 AD3d at 915, quoting Bongiovi vHoffman, 18 AD3d at 687 [internal quotation marks omitted]; see Gergis v Miccio,39 AD3d at 468), "and the defendant driver who had the right of way was entitled to anticipatethat the injured plaintiff would obey the traffic law requiring her to yield" (Hull v Spagnoli, 44 AD3d 1007,1007 [2007]; see Mohammad v Ning, 72 AD3d at 914; McCain v Larosa, 41 AD3d 792,793 [2007]; Gergis v Miccio, 39 AD3d at 468).
Additionally, the plaintiff failed to raise a triable issue of fact in opposition to the defendant'smotion through the submission of a nonparty eyewitness statement.
Accordingly, the Supreme Court properly granted the defendant's motion for summaryjudgment dismissing the complaint. Angiolillo, J.P., Dickerson, Belen and Chambers, JJ.,concur.