Opinion
No. 5567/12.
2013-03-11
Sabahittin SALDIRAN, Plaintiff, v. Maung M. HTWE, Defendant.
John C. Buratti & Associates New York, attorneys for defendant. Morrison & Wagner, LLP, New York, attorneys for plaintiff.
John C. Buratti & Associates New York, attorneys for defendant. Morrison & Wagner, LLP, New York, attorneys for plaintiff.
DECISION/ORDER
PETER P. SWEENEY, J.
The following papers numbered 1 to 2 were read on this motion:
+-----------------------------------------------------------------------------+ ¦Papers: ¦Numbered¦ +--------------------------------------------------------------------+--------¦ ¦Notice of Motion/Order to Show Cause Affidavits/Affirmations/ ¦1 ¦ ¦Exhibits ¦ ¦ +--------------------------------------------------------------------+--------¦ ¦Answering Affirmations/Affidavits/Exhibits ¦ ¦ +--------------------------------------------------------------------+--------¦ ¦Reply Affirmations/Affidavits/Exhibits ¦ ¦ +--------------------------------------------------------------------+--------¦ ¦Other ¦2 ¦ +-----------------------------------------------------------------------------+
Upon the foregoing papers the motion is decided as follows:
In this personal injury action arising out of a two car collision that occurred at the intersection of Avenue S and West 9th Street, Brooklyn, New York, plaintiff, Sabahittin Saldiran, the driver of one of the vehicles, moves for partial summary judgment on the issue of liability.
In support of the motion, plaintiff submitted his own affidavit stating that at the time of the accident, he was traveling in an easterly direction and Avenue S and was proceeding through the intersection with the right of way, when his vehicle was struck by defendant's vehicle, which was traveling north direction on West 9th Street. He stated that the only traffic control device at the intersection was a stop sign, which controlled traffic entering the intersection from West 9th Street in the direction defendant was proceeding. Plaintiff did not state whether he observed defendant's vehicle prior to the impact or whether he ever attempted to avoid the collision.
In opposition to the motion, defendant submitted only the affirmation of his attorney, who lacked personal knowledge of the facts.
“A driver who fails to yield the right of way after stopping at a stop sign is in violation of Vehicle and Traffic Law § 1142(a) and is negligent as a matter of law.” See Thompson v. Schmitt, 74 AD3d 789, 789, 902 N.Y.S.2d 606 (2nd Dep't 2010); see Francavilla v. Doyno, 96 AD3d 714, 715, 945 N.Y.S.2d 425 (2nd Dep't 2012); Singh v. Singh, 81 AD3d 807, 916 N.Y.S.2d 527 (2nd Dep't 2011); Czarnecki v. Corso, 81 AD3d 774, 775, 916 N.Y.S.2d 828 (2nd Dep't 2011; Martin v. Ali, 78 AD3d 1135, 912 N.Y.S.2d 610 (2nd Dep't 2010); Rahaman v. Abodeledhman, 64 AD3d 552, 553, 883 N.Y.S.2d 259 (2nd Dep't 2009); Klein v. Crespo, 50 AD3d 745, 745, 855 N.Y.S.2d 633 (2nd Dep't 2008). Although plaintiff presented uncontroverted evidence that the defendant driver negligently failed to yield the right-of-way, plaintiff did not demonstrate his freedom from negligence as a matter of law. In Thoma v. Ronai, 82 N.Y.2d 736, 602 N.Y.S.2d 323, 621 N.E.2d 690 [1993],affg. 189 A.D.2d 635, 592 N.Y.S.2d 333 [1993], the Court of Appeals held that even where defendant's negligence is established as a matter of law, the plaintiff is not entitled to summary judgment as to liability where there remain questions of fact regarding his or her comparative fault. This rule of law has been consistently followed in this department. See, e.g., Shui–Kwan Lui v. Serrone, 959 N.Y.S.2d 270, 272 (2nd Dep't 2013); Pieper v. Hussein, 102 AD3d 760, 761, 957 N.Y.S.2d 877 (2nd Dep't 2013); Maiello v. Kirchner, 98 AD3d 481, 483, 949 N.Y.S.2d 200, 203 (2nd Dep't 2013); Hazzard v. Burrowes, 95 AD3d 829, 830–831, 943 N.Y.S.2d 213, 214–215 (2nd Dep't 2012); Hernandez v. Tepan, 92 AD3d 721, 722, 938 N.Y.S.2d 475, 476 (2nd Dep't 2012); Gardella v. Esposito Foods, Inc., 80 AD3d 660, 914 N.Y.S.2d 678 (2nd Dep't 2011).
Here, the fact that defendant failed to yield the right of way at the intersection does “does not preclude a finding that comparative negligence by [plaintiff] contributed to the accident.” See Romano v. 202 Corp., 305 A.D.2d 576, 577, 759 N.Y.S.2d 365 (2d Dep't 2003); Bodner v. Greenwald, 296 A.D.2d 564, 745 N.Y.S.2d 711 (2d Dep't 2002); Siegel v. Sweeney, 266 A.D.2d 200, 697 N.Y.S.2d 317 (2d Dep't 1999). A driver with the right-of-way has a duty to use reasonable care to avoid a collision. Id.; see also, Cox v. Nunez, 23 AD3d 427, 427–428, 805 N.Y.S.2d 604 (2nd Dep't 2005), and plaintiff failed to support his motion with sufficient proof demonstrating that he used reasonable care in attempting to avoid the collision. As stated above, no where in his affidavit did plaintiff address what he observed prior to the impact and whether he attempted to avoid the collision. Plaintiff's motion must therefore be denied, regardless of the sufficiency of the defendant's opposition papers. Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 853, 476 N.E.2d 642, 64, 487 N.Y.S.2d 316, 318 (1985).
Accordingly, it is hereby
ORDERED that plaintiff's motion for partial summary judgment on the issue of liability is DENIED.
This constitutes the decision and order of the court.