| Joaquin v Franco |
| 2014 NY Slip Op 02904 [116 AD3d 1009] |
| April 30, 2014 |
| Appellate Division, Second Department |
| Johana Joaquin, an Infant, by Her Mother and NaturalGuardian, Edith Yupanqui, et al., Appellants, v Carmelina Franco et al.,Appellants, and Kristin Marino et al., Respondents. |
—[*1] Zaklukiewicz, Puzo & Morrissey, LLP, Islip Terrace, N.Y. (Candace M. Bartone ofcounsel), for defendants-appellants. Picciano & Scahill, P.C., Westbury, N.Y. (Francis J. Scahill and Andrea E. Ferrucciof counsel), for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal fromso much of an order of the Supreme Court, Suffolk County (Farneti, J.), dated May 14,2012, as granted that branch of the motion of the defendants Kristin Marino and StaminaHeating and Cooling, Inc., which was for summary judgment dismissing the complaintinsofar as asserted against them, and the defendants Carmelina Franco and Nestor Trejoseparately appeal, as limited by their brief, from so much of the same order as grantedthat branch of the same motion which was for summary judgment dismissing the crossclaims asserted by them.
Ordered that the order is affirmed, with one bill of costs.
The plaintiff Johana Joaquin allegedly was injured while she was a passenger in avehicle owned by the defendant Nestor Trejo and operated by the defendant CarmelinaFranco (hereinafter together the Franco defendants), which collided with a vehicleowned by the defendant Stamina Heating and Cooling, Inc., and operated by thedefendant Kristin Marino (hereinafter together the Marino defendants). In the order onappeal, the Supreme Court granted the Marino defendants' motion for summary judgmentdismissing the complaint and all cross claims insofar as asserted against them.
The Marino defendants demonstrated their prima facie entitlement to judgment as amatter of law by submitting evidence, in the form of the deposition testimony of Marinoand two nonparty witnesses, that Franco entered the intersection where the collisionoccurred against a red traffic light, in violation of Vehicle and Traffic Law § 1110(a) (see Simmons v Canady,95 AD3d 1201, 1202 [2012]; Vainer v DiSalvo, 79 AD3d 1023 [2010]; Blangiardo v Hirsch, 29 AD3d841, 842 [2006]), and that this was the sole proximate cause of the accident. Aviolation of the Vehicle and Traffic Law constitutes negligence as a matter of law(see Botero v Erraez, 289 AD2d 274 [2001]; Ferrara v Castro, 283 AD2d392 [2001]; Packer v Mirasola, 256 AD2d 394 [1998]).[*2]
In opposition to the Marino defendants' primafacie showing, the plaintiffs and the Franco defendants (hereinafter collectively theappellants) failed to raise a triable issue of fact. Contrary to the appellants' contention, theallegation that Marino was driving approximately 50 miles per hour at the time of impact,in a location where the posted speed limit was 50 miles per hour, was insufficient to raisea question of fact as to Marino's comparative fault, particularly where the appellants didnot allege that weather conditions warranted a reduction in speed (see Galvin vZacholl, 302 AD2d 965, 966-967 [2003]; Mosch v Hansen, 295 AD2d 717,718 [2002]). Likewise, Marino's deposition testimony that she did not take evasive actionin the seconds before impact did not raise a triable issue of fact. "[A] driver with theright-of-way who has only seconds to react to a vehicle which has failed to yield is notcomparatively negligent for failing to avoid the collision" (Yelder v Walters, 64 AD3d762, 764 [2009]; see Cox vWeil, 86 AD3d 620, 621 [2011]), and " 'was entitled to anticipate that the [otherdriver] would obey the traffic law requiring her to yield' " (Briggs v Russo, 98 AD3d547, 548 [2012], quoting Hull v Spagnoli, 44 AD3d 1007, 1007 [2007]; see Harris v Linares, 106AD3d 873, 874 [2013]; Kotzias v Panagiotis, 91 AD3d 607, 607 [2012]; Gallagher v McCurty, 85AD3d 1109, 1110 [2011]; Wesh v Laidlaw, 59 AD3d 534, 535 [2009]).
The parties' remaining contentions are either without merit or academic in light ofour determination.
Accordingly, the Supreme Court properly granted the Marino defendants' motion forsummary judgment dismissing the complaint and all cross claims insofar as assertedagainst them. Skelos, J.P., Leventhal, Chambers and Maltese, JJ., concur.