Opinion
No. 1256/2014.
03-03-2015
James NIEVES, Plaintiff, v. Bibi HANIF and Azad Hanif, Defendants.
Opinion
In this negligence action, plaintiff, James Nieves, seeks to recover damages for personal injuries he sustained as a result of a motor vehicle accident that occurred on October 6, 2013, between the vehicle operated by plaintiff and the vehicle owned by defendant, Bibi Hanif, and operated by defendant, Azad Hanif. The accident took place at the intersection of 242nd Street and 89th Avenue, Queens County, New York. The intersection is controlled by a stop sign which was facing the direction of the Hanif vehicle on 89th Avenue. Nieves, who had no traffic control device in his direction, contends that he was proceeding with the right-of-way on 242nd Street when the vehicles collided in the intersection. Plaintiff asserts that Mr. Hanif was negligent in entering the intersection without yielding the right of way and that Mr. Hanif's negligence was the sole proximate cause of the accident.
The plaintiff commenced this action by filing a summons and complaint on January 27, 2014. Issue was joined by service of defendants' verified answer dated March 12, 2014. A Note of Issue was filed on December 15, 2014. In support of the motion for summary judgment, plaintiff submits an affirmation from counsel, Christina Mark, Esq; a copy of the pleadings; a copy of the police accident report; photographs depicting the damage to the vehicles; and copies of the transcripts of the depositions of plaintiff, James Nieves, and defendant Azad Hanif.
James Nieves, age 34, was deposed on June 25, 2014. He stated that the accident took place around the corner from his house at the intersection of 242nd Street and 89th Avenue at approximately 7:25 a .m. He was traveling from his house to his job and was proceeding on 242nd Street. There was no traffic device in his direction but there was a stop sign facing drivers on 89th Avenue. As he was proceeding through the intersection he saw the defendants' vehicle on 89th Avenue proceeding westbound from his left about one second before the impact. He steered right to try to avoid the accident. He states that the defendants, vehicle was just going through the intersection as he was entering it. He states that as he proceeded across the intersection he saw the front of the defendant's vehicle coming right through the intersection. He stated that as he approached the intersection, he looked in both directions on 89th before entering the intersection but he did not see any vehicles. He stated that the front side of the defendants' vehicle stuck his vehicle on driver's side in the area of the front tire. When the police arrived at the scene the defendant told the officer that he was sorry and that he didn't see the plaintiff's vehicle.
Azad Hanif, age 58, was deposed on August 6, 2014. He stated that he was involved in a motor vehicle accident on Sunday, October 6, 2013 at 7:30 a.m. He was proceeding on 89th Avenue on his way home. He stated that there was a stop sign at the intersection with 242nd Street. He stated that he made a full stop right before the stop sign and waited for 5–10 seconds. He states that he could not see any oncoming traffic so he gently moved forward a little bit. He kept looking to his left and right. He states that he still could not see any oncoming traffic due to parked vehicles on all corners of the road. He states that when he moved up a third time, his vehicle collided with the plaintiff's vehicle. He stated that although he could not see the traffic on 89th when he moved up the third time, his vehicle was rolling partially into the intersection and was struck. He did not see the plaintiff's vehicle until after the collision. He told the police officer at the scene that he stopped and then moved forward and before he could see the plaintiff's vehicle the collision occurred. He told the officer that because of the parked vehicles on the corner he could not see if any vehicle were approaching.
The police officer who responded to the scene filed a police accident report which describer the accident as follows;
“At t/p/o Oper. No.1 (plaintiff) states he was traveling southbound on 242nd Street and states that Veh # 2 had a stop sign and hit his vehicle. Oper # 2 (defendant), states he was traveling eastbound on 89th Avenue and came to a complete stop and didn't see Veh # 1 coming.”
The plaintiff now seeks summary judgment contending that the evidence establishes that Mr. Hanif's actions violated VTL § 1142(a), that Mr. Hanif's actions were negligent as a matter of law and were the sole proximate cause of the accident. Plaintiff's counsel contends that the accident was caused solely by the negligence of Mr. Hanif who had a stop sign facing his direction of traffic and failed to yield the right of way to the plaintiff in violation of VTL § 1142. Plaintiff submits that defendant was negligent in entering the intersection when it was not safe to do so, failed to see the vehicle operated by the plaintiff and failed to yield to the plaintiff's vehicle which was proceeding with the right-of-way on 242nd Street. Counsel asserts that Mr. Hanif entered the intersection without being able to see to his right to ascertain whether there was a vehicle approaching. It is claimed that by entering the intersection, past the stop sign, without knowing whether any vehicles were coming from his right, he caused the subject accident (see Williams v. Hayes, 103 AD3d 713 [2d Dept.2013] ; Figueroa v. Diaz, 107 AD3d 754 [2d Dept.2013] ; Francavilla v. Doyno, 96 AD3d 714 [2d Dept.2012] ; Barbato v. Maloney, 94 AD3d 1028 [2d Dept.2012] ; Zuleta v. Quijada, 94 AD3d 876 [2d Dept.2011] ; O'Connell v. DL Peterson Trust/Abbott Labs, 67 AD3d 87[2d Dept.2009]. Thus, the plaintiff contends that Mr. Hanif, who conceded that he never saw the plaintiff's vehicle before he entered the intersection, was negligent and that his negligence was the sole proximate cause of the accident. Plaintiff contends that he was proceeding lawfully with the right of way, and only saw the defendants' vehicle a second before the impact and tried to avoid the impact, and as such, was free from culpable conduct (see Grossman v. Spector, 48 AD3d 750 [2d Dept.2008] ; Odumbo v. Perera, 27 AD3d 709 [2d Dept.2006] ; Bongiovi v. Hoffman, 18 AD3d 686 [2d Dept.2005] ).
In opposition, Jeffrey E. Bollinger, Esq., counsel for defendant, submits that summary judgment is not appropriate as there are triable issues of fact with respect to the plaintiff's negligence in the happening of the accident. Firstly, counsel asserts that the defendant did, in fact, stop at the stop sign and did attempt to yield the right of way as he was inching up slowly into the intersection. Counsel also asserts that there can be more than one proximate cause of an accident (see Incle v. Byrne–Lowell, 115 AD3d 709 [2d Dept.2014] ; Cox v. Nunez, 23 AD3d 427 [2d Dept.2005] ). Plaintiff argues that there is evidence of comparative negligence on the part of Mr. Nieves in that Mr. Nieves failed to see the Hanif vehicle in the intersection, failed to yield, and failed to use reasonable care to avoid the collision. Thus, defendant asserts that Mr. Nieves has not established his freedom from comparative negligence.
The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form in support of his position (see Zuckerman v. City of New York, 49 N.Y.2d 557[1980] ).
Pursuant to VTL § 1142(a) :
“every driver of a vehicle approaching a stop sign shall stop as required by section eleven hundred seventy-two and after having stopped shall yield the right of way to any vehicle which has entered the intersection from another highway or which is approaching so closely on said highway as to constitute an immediate hazard during the time when such driver is moving across or within the intersection.”
Upon review of the plaintiff's motion for partial summary judgment on the issue of liability, the defendants' affirmation in opposition, and the plaintiff's reply thereto, this Court finds as follows:
The plaintiff presented evidence that the defendant, who was faced with a stop sign at the intersection of 242nd Street and 89th Avenue, was negligent in entering the intersection without having a clear view of the traffic on the through street and without yielding the right-of-way to plaintiff's vehicle (see Vehicle and Traffic Law § 1142[a] ; Luke v. McFadden, 119 AD3d 533 [2d Dept.2014] [driver who fails to yield the right-of-way after stopping at a stop sign controlling traffic is in violation of Vehicle and Traffic Law §§ 1142(a) and 1172(a), and is negligent as a matter of law]; Galvis v. Ravilla, 111 AD3d 600 [2d Dept.2013] ; Timm v. Barilli, 109 AD3d 655 [2d Dept.2013] ; Figueroa v. Diaz, 107 AD3d 754 [2d Dept.2013] ; Hutton v. Whelan, 104 AD3d 914 [2d Dept.2013] ; Williams v. Hayes, 103 AD3d 713 [2d Dept.2013] ; Francavilla v.. Doyno, 96 AD3d 714 [2d Dept.2012] ; Zuleta v. Quijada, 94 AD3d 876 [2d Dept.2012] ; Kotzias v. Panagiotis, 91 AD3d 607 [2d Dept.2012] ; Duran v. Simon, 83 AD3d 654 [2d Dept.2011] ). It is immaterial that the defendant stopped at the stop sign before proceeding into the intersection, because he did not have the right of way when he proceeded into the intersection without seeing approaching traffic (see Williams v. Hayes, 103 AD3d 713 [2d Dept.2013] ; Amalfitano v. Rocco, 100 AD3d 939 [2d Dept.2012] ; Czarnecki v. Corso, 81 AD3d 774 [2d Dept.2011] ; Martin v. Ali, 78 AD3d 1135 [2d Dept.2010] ).
Here, Mr. Hanif testified that he proceeded into the intersection despite the fact that his view of 242nd Street was obstructed by vehicles parked near the corner. He told the police officer at the scene that he stopped his vehicle and proceeded slowly into the intersection but rolled his vehicle into the intersection without seeing the plaintiff's vehicle approaching. In this regard, the courts have held that where the proof establishes that a vehicle enters an intersection without a clear view of traffic and fails to yield the right-of-way to cross-traffic after stopping at a stop sign, the evidence is sufficient to establish the driver is negligent based upon a violation of Vehicle and Traffic Law § 1142(a) (see Galvis v. Ravilla, 111 AD3d 600 [2d Dept.2013] [the sole proximate cause of the accident was the injured plaintiff's failure to properly observe and yield to cross traffic before proceeding into the intersection]; Timm v. Barilli, 109 AD3d 655 [2d Dept.2013] ; Figueroa v. Diaz, 107 AD3d 754 [2d Dept.2013] ; Hutton v. Whelan, 104 AD3d 914 [2d Dept.2013] ; Williams v. Hayes, 103 AD3d 713 [2d Dept.2013] ; Francavilla v. Doyno, 96 AD3d 714 [2d Dept.2012] ; Martin v. Ali, 78 AD3d 1135 [2d Dept.2010] ; Cartica v. Kieltyka, 55 AD3d 523 [2d Dept.2008] ).
Further, the evidence submitted in support of the motion establishes, prima facie, that plaintiff was free of comparative negligence and that defendant's conduct in driving into the path of plaintiff's vehicle was the sole proximate cause of the accident. The plaintiff as entitled to anticipate that Mr. Hanif would obey the traffic law requiring him to yield (see Luke v. McFadden, 119 AD3d 533 [2d Dept.2014] ; Bennett v. Granata, 987 N.Y.S.2d 424 [2d Dept.2014] ; Williams v. Hayes, 103 AD3d 713 [2d Dept.2013] ; Francavilla v. Doyno, 96 AD3d 714 [2d Dept.2012] ; Kotzias v. Panagiotis, 91 AD3d at 607[2d Dept, 2012] ; Duran v. Simon, 83 AD3d 654 [2d Dept.2011] ; Martin v. Ali, 78 AD3d 1135 [2d Dept.2010] ).
Having made the requisite prima facie showing of entitlement to summary judgment as a matter of law, the burden shifted to the defendant to raise a triable issue of fact as to whether the plaintiff was also negligent, and if so, whether that negligence contributed to the happening of the accident (see Goemans v. County of Suffolk, 57 AD3d 478 [2d Dept.2007] ). Here, this Court finds that the defendant failed to raise a triable issue of fact as to whether plaintiff was comparatively negligent because the driver who has the right of way is entitled to anticipate that the driver facing the stop sign will obey the traffic law requiring him or her to yield (see Harris v. Linares, 106 AD3d 873 [2d Dept.2013] ; Williams v. Hayes, 103 AD3d 713 [2d Dept.2013] ; Briggs v. Russo, 98 AD3d 547 [2d Dept.2012] ; Barbato v. Maloney, 94 AD3d 1028 [2d Dept.2012] ; Rahaman v. Abodeledhman, 64 AD3d 552 [2d Dept.2009] ). In addition, a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively at fault for failing to avoid the collision (see Breen v. Seibert, 123 AD3d 963 [2d Dept.2014] ; Bennett v. Granata, 118 AD3d 652 [2d Dept.2014] ; Figueroa v. Diaz, 107 AD3d 754 [2d Dept.2013] ; Barbato v. Maloney, 94 AD3d 1028 [2d Dept.2012] ).
Accordingly, for all of the above stated reasons, it is hereby,
ORDERED, that the plaintiff's motion is granted, and the plaintiff, JAMES NIEVES, shall have partial summary judgment on the issue of liability against the defendants, BIBI HANIF andAZID HANIF, and the Clerk of Court is authorized to enter judgment accordingly, and it is further,
ORDERED, that upon completion of discovery on the issue of damages, and compliance with all the rules of the Court, this action shall be placed on the trial calendar of the Court for a trial on serious injury and damages.