| Williams v Hayes |
| 2013 NY Slip Op 00908 [103 AD3d 713] |
| February 13, 2013 |
| Appellate Division, Second Department |
| David Williams, Appellant, v Cleon Hayes et al.,Respondents. |
—[*1] Frank J. Laurino, Bethpage, N.Y. (Calvin L. Weintraub of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals, as limitedby his brief, from so much of an order of the Supreme Court, Orange County (Onofry,J.), dated May 7, 2012, as denied his motion for summary judgment on the issue ofliability.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and the plaintiff's motion for summary judgment on the issue of liability is granted.
"A driver who fails to yield the right of way after stopping at a stop sign is inviolation of Vehicle and Traffic Law § 1142 (a) and is negligent as a matter oflaw" (Thompson v Schmitt,74 AD3d 789, 789 [2010]; see Francavilla v Doyno, 96 AD3d 714, 715 [2012]; Singh v Singh, 81 AD3d807 [2011]; Czarnecki vCorso, 81 AD3d 774, 775 [2011]; Martin v Ali, 78 AD3d 1135 [2010]; Rahaman v Abodeledhman, 64AD3d 552, 553 [2009]; Klein v Crespo, 50 AD3d 745, 745 [2008]). "A driver isrequired to see that which through proper use of his or her senses he or she should haveseen" (Klein v Crespo, 50 AD3d at 745-746; see Gallagher v McCurty, 85 AD3d 1109 [2011]; Yelder v Walters, 64 AD3d762 [2009]; Gergis vMiccio, 39 AD3d 468, 468 [2007]). The driver with the right-of-way is entitledto anticipate that the other motorist will obey traffic laws which require him or her toyield (see Francavilla v Doyno, 96 AD3d at 715; Gallagher v McCurty, 85AD3d 1109 [2011]; Dimouv Iatauro, 72 AD3d 732, 734 [2010]; Yelder v Walters, 64 AD3d at764).
Here, the plaintiff established, prima facie, his entitlement to judgment as a matter oflaw by demonstrating that the defendant Cleon Hayes, who was faced with a stop sign atan intersection, negligently drove the vehicle owned by the defendant Ida Delgado intothe intersection in which the plaintiff was traveling in his vehicle, without yielding theright-of-way to the plaintiff, and that this was the sole proximate cause of the accident(see Vehicle and Traffic Law § 1142 [a]; Francavilla v Doyno, 96AD3d at 715; Czarnecki v Corso, 81 AD3d at 775).
In opposition, the defendants failed to raise a triable issue of fact. While Hayescontended that he fully stopped at the stop sign before proceeding into the intersection,the question of whether Hayes stopped at the stop sign is not dispositive since theevidence establishes that he failed to yield even though he did stop (see Czarnecki vCorso, 81 AD3d at 775; Goemans v County of Suffolk, 57 AD3d 478, 479 [2008];Maliza v Puerto-Rican Transp.Corp., 50 AD3d 650, 652 [2008]). Moreover, the defendants failed to contestthe statements in the plaintiff's affidavit, submitted in support of his [*2]motion for summary judgment, that he was traveling at orbelow the speed limit and that he was too close to the intersection when Hayes entered itto avoid the accident. Instead, they simply contended that the plaintiff was comparativelyat fault since the accident occurred in the middle of the intersection and the plaintiff'svehicle came into contact with the vehicle operated by Hayes. That contention, inresponse to the plaintiff's prima facie showing that the defendant failed to yield theright-of-way, was speculative and, therefore, failed to raise a triable issue of fact withrespect to whether the plaintiff was comparatively at fault (see Francavilla vDoyno, 96 AD3d at 715; Czarnecki v Corso, 81 AD3d at 775).
Accordingly, the Supreme Court improperly denied the plaintiff's motion forsummary judgment on the issue of liability. Balkin, J.P., Hall, Austin and Cohen, JJ.,concur.