| Figueroa v Diaz |
| 2013 NY Slip Op 04305 [107 AD3d 754] |
| June 12, 2013 |
| Appellate Division, Second Department |
| Norma Figueroa, Respondent, v Richard Diaz etal., Defendants, and John C. Guinn, Jr., et al., Appellants. |
—[*1] Robert C. Fontanelli, P.C. (Arnold E. Di Joseph, P.C., New York, N.Y. [Arnold E.DiJoseph III], of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants John C. Guinn,Jr., and T.J's Car Service, Inc., appeal, as limited by their brief, from so much of an orderof the Supreme Court, Kings County (Silber, J.), dated October 6, 2011, as, upon renewaland reargument, in effect, adhered to the original determination in an order of the samecourt dated June 30, 2010, denying that branch of their cross motion which was forsummary judgment dismissing the complaint insofar as asserted against them.
Ordered that the order dated October 6, 2011, is reversed insofar as appealed from,on the law, with costs, and, upon renewal and reargument, that branch of the crossmotion of the defendants John C. Guinn, Jr., and T.J.'s Car Service, Inc., which was forsummary judgment dismissing the complaint insofar as asserted against them is granted,and the order dated June 30, 2010, is modified accordingly.
This appeal arises out of an automobile accident that occurred at the intersection ofRichmond Terrace and Park Avenue in Richmond County. The plaintiff was a passengerin a vehicle owned by the defendant T.J.'s Car Service, Inc. (hereinafter T.J.'s CarService), and operated by the defendant John C. Guinn, Jr. (hereinafter the Guinnvehicle). The Guinn vehicle was proceeding on Richmond Terrace. At the subjectintersection, the Guinn vehicle was struck on the driver's side by a vehicle owned by thedefendant Martha E. Marmolejos and operated by the defendant Richard Diaz(hereinafter the Diaz vehicle). The Diaz vehicle was proceeding on Park Avenue. Theroute of travel of the Diaz vehicle was controlled by a stop sign, and Richmond Terrace,where the Guinn vehicle was traveling, did not have any traffic control device. Diazallegedly was arrested at the scene of the accident for driving while intoxicated.
Upon renewal and reargument, Guinn and T.J.'s Car Service established their primafacie entitlement to judgment as a matter of law by submitting evidence that Diaz failedto stop at the stop sign and failed to yield to the Guinn vehicle, which had theright-of-way, and that Guinn and T.J.'s Car Service were free from comparative fault(see Vehicle and Traffic Law § 1142 [a]; [*2]Graeber-Nagel v Naranjan, 101 AD3d 1078, 1078[2012]).
In opposition, the plaintiff failed to raise a triable issue of fact as to any allegedcomparative fault on the part of Guinn or T.J.'s Car Service. Guinn's depositiontestimony that he did not see the Diaz vehicle until he was hit was insufficient to raise atriable issue of fact (see Barbatov Maloney, 94 AD3d 1028, 1029 [2012]; Rahaman v Abodeledhman, 64 AD3d 552, 553-554[2009]). While a driver is required to see that which through proper use of his or hersenses he or she should have seen, 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(see Williams v Hayes, 103AD3d 713, 714 [2013]; Vazquez v New York City Tr. Auth., 94 AD3d 870, 871[2012]; Rahaman v Abodeledhman, 64 AD3d at 554). A driver with theright-of-way who has only seconds to react to a vehicle which has failed to yield is notcomparatively at fault for failing to avoid the collision (see Barbato v Maloney,94 AD3d at 1030; Yelder vWalters, 64 AD3d 762, 764 [2009]). Accordingly, upon renewal andreargument, the Supreme Court should have granted that branch of the cross motion ofGuinn and T.J.'s Car Service which was for summary judgment dismissing the complaintinsofar as asserted against them. Rivera, J.P., Leventhal, Sgroi and Cohen, JJ., concur.