Opinion
2002-09461
Argued April 28, 2003.
May 19, 2003.
In an action to recover damages for personal injuries, the defendant Joy M. Stewart appeals from an order of the Supreme Court, Kings County (Bunyan, J.), dated September 13, 2002, which denied her motion for summary judgment dismissing the complaint insofar as asserted against her.
Bryan M. Rothenberg, Mineola, N.Y. (Kathleen M. DiCola and Alan M. Shushan of counsel), for appellant.
Stuart Sears, New York, N.Y. (Nolan Matz of counsel), for respondent.
McMahon, Martine Gallagher, New York, N.Y. (Patrick W. Brophy and Timothy D. Gallagher of counsel), for defendants Anthony P. Davis and Autley R. Davis.
Before: MYRIAM J. ALTMAN, J.P., BARRY A. COZIER, WILLIAM F. MASTRO, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the appellant, and the action against the remaining defendants is severed.
The action arises out of a motor vehicle accident that occurred on May 1, 1999, at the intersection of Avenue J and Brooklyn Avenue in Brooklyn. At the time of the collision the plaintiff, Peter Wilkins, was a passenger in a vehicle operated by the defendant Anthony P. Davis (hereinafter Davis), traveling south on Brooklyn Avenue. Joy M. Stewart, operating the other vehicle involved in the collision, was traveling east on Avenue J. At the intersection of these two streets, there was no traffic control device for vehicles traveling on Avenue J, while the traffic on Brooklyn Avenue was controlled by a stop sign. Davis admits that he did not stop for the sign.
In support of her motion for summary judgment, Stewart demonstrated her entitlement to judgment as a matter of law by establishing that Davis failed to stop for a stop sign 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). Stewart, who had the right-of-way, was entitled to assume that Davis 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).
In response, the contention that there is a triable question of fact as to Stewart'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, the Supreme Court should have granted Stewart's motion for summary judgment dismissing the complaint insofar as asserted against her.
ALTMAN, J.P., COZIER, MASTRO and RIVERA, JJ., concur.