From Casetext: Smarter Legal Research

Klein v. Byalik

Appellate Division of the Supreme Court of New York, Second Department
Nov 10, 2003
1 A.D.3d 399 (N.Y. App. Div. 2003)

Opinion

2003-00741

Submitted October 8, 2003.

November 10, 2003.

In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Kings County (Dowd, J.), dated December 11, 2002, which denied their motion for summary judgment on the issue of liability.

Kagan and Gertel, Brooklyn, N.Y. (Irving Gertel of counsel), for appellants.

Callahan Malone, Mineola, N.Y. (Kimberley A. Carpenter of counsel), for respondent.

Before: FRED T. SANTUCCI, J.P., GLORIA GOLDSTEIN, ROBERT W. SCHMIDT, BARRY A. COZIER, JJ.


DECISION ORDER

ORDERED that the order is reversed, on the law, with costs, and the motion is granted.

In this case involving a motor vehicle accident at an intersection, the street on which the defendant was driving had a stop sign while the street on which the plaintiff Judy Klein (hereinafter the plaintiff) was driving did not. In support of her motion for summary judgment, the plaintiff established that the defendant failed to properly observe and yield to cross traffic before proceeding into the intersection ( see Vehicle and Traffic Law §§ 1142[a] and 1172[a]; Disher v. Ahern, 294 A.D.2d 393; Puccio v. Caputo, 272 A.D.2d 387; Gillinder v. Hemmes, 298 A.D.2d 493). The plaintiff, who had the right-of-way, was entitled to assume that the defendant would obey the traffic laws requiring him to yield ( see Stiles v. County of Dutchess, 278 A.D.2d 304; Cenovski v. Lee, 266 A.D.2d 424). The defendant's contention that there is a triable issue of fact as to the plaintiff's negligence because she failed to see that which by the proper use of her senses she should have seen is mere speculation, insufficient to defeat the motion ( see Parisi v. Mitchel, 280 A.D.2d 589; Szczotka v. Adler, 291 A.D.2d 444). Accordingly, summary judgment should have been granted to the plaintiff.

SANTUCCI, J.P., GOLDSTEIN, SCHMIDT and COZIER, JJ., concur.


Summaries of

Klein v. Byalik

Appellate Division of the Supreme Court of New York, Second Department
Nov 10, 2003
1 A.D.3d 399 (N.Y. App. Div. 2003)
Case details for

Klein v. Byalik

Case Details

Full title:JUDY KLEIN, ET AL., appellants, v. MIKHAIL BYALIK, respondent

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Nov 10, 2003

Citations

1 A.D.3d 399 (N.Y. App. Div. 2003)
766 N.Y.S.2d 687

Citing Cases

Spatola v. Gelco Corp.

In support of their motion for summary judgment on the issue of liability, the plaintiffs established that…

Salce v. Check

The defendant violated Vehicle and Traffic Law § 1141 when he entered an intersection, attempted a left…