| Rodriguez v Klein |
| 2014 NY Slip Op 02761 [116 AD3d 939] |
| April 23, 2014 |
| Appellate Division, Second Department |
| Carlitos A. Rodriguez, Appellant, v Levi Y. Kleinet al., Respondents. |
—[*1] Crisci Weiser McCarthy, New York, N.Y. (David P. Weiser of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Kings County (Vaughan, J.), dated July 10, 2013, which, ineffect, denied his motion for summary judgment on the issue of liability and dismissingthe defendants' affirmative defenses.
Ordered that the order is affirmed, with costs.
On February 1, 2010, the plaintiff allegedly was injured when the vehicle he wasoperating collided with a vehicle which was owned by the defendant Save A. WattConservation Corp. and operated by the defendant Levi Y. Klein. The collision occurredat the intersection of Avenue K and East 9th Street in Brooklyn; the plaintiff wasproceeding along Avenue K, and Klein was proceeding along East 9th Street. At thesubject intersection, the traffic proceeding along Avenue K was not regulated by a trafficcontrol device, while the traffic proceeding along East 9th Street was controlled by a stopsign. The plaintiff moved for summary judgment on the issue of liability and dismissingthe defendants' affirmative defenses. The Supreme Court, in effect, denied the motion.
A driver who has the right of way is entitled to anticipate that other drivers will obeytraffic laws which require them to yield (see Vehicle and Traffic Law §1141; Kann v MaggiesParatransit Corp., 63 AD3d 792 [2009]; Moreno v Gomez, 58 AD3d 611 [2009]; Palomo v Pozzi, 57 AD3d498 [2008]; Gabler v MarlyBldg. Supply Corp., 27 AD3d 519 [2006]; Moreback v Mesquita, 17 AD3d 420 [2005]). Moreover, adriver is negligent where he has failed to see that which through proper use of his senseshe should have seen (see Lainov Lucchese, 35 AD3d 672 [2006]; Berner v Koegel, 31 AD3d 591 [2006]; Bongiovi v Hoffman, 18AD3d 686 [2005]; Bolta v Lohan, 242 AD2d 356 [1997]). At the same time,a driver who has the right of way has a duty to exercise reasonable care to avoid acollision with another vehicle already in the intersection (see Demant v Rochevet, 43AD3d 981 [2007]). "There can be more than one proximate cause of an accident"(Cox v Nunez, 23 AD3d427, 427 [2005]), and the issue of comparative fault is generally a question for thejury to decide (see Sokolovsky vMucip, Inc., 32 AD3d 1011 [2006]; Valore v McIntosh, 8 AD3d 662 [2004]).[*2]
Here, in support of his motion for summaryjudgment on the issue of liability, the plaintiff made a prima facie showing that he hadthe right of way and was entitled to anticipate that Klein would obey the traffic laws, andthat, by failing to stop, Klein violated Vehicle and Traffic Law § 1142 (a), whichconstituted negligence as a matter of law (see Bonilla v Gutierrez, 81 AD3d 581, 582 [2011]). Inaddition, the plaintiff made a prima facie showing that he was free of comparative fault(see id.). In opposition, however, the defendants raised a triable issue of fact as towhether Klein did, in fact, stop at the stop sign, whether his vehicle was lawfully withinthe intersection at the time the accident occurred, and whether the plaintiff was driving atan excessive rate of speed and whether he could have avoided the accident throughexercise of reasonable care (seeSteiner v Dincesen, 95 AD3d 877, 878 [2012]).
Accordingly, the Supreme Court properly, in effect, denied the plaintiff's motion forsummary judgment on the issue of liability and dismissing the defendants' affirmativedefenses. Dillon, J.P., Hall, Austin and Duffy, JJ., concur.