Opinion
Index No. 2016-52823
01-24-2018
CHRISTOPHER BREWER, Plaintiff, v. ROBERT A. GREENE, Defendant.
Alexander Mainetti, Esq. Mainetti, Mainetti & O'Connor, PC Attorneys for Plaintiff Sami Nasser, Esq. Burke, Conway & Dillon Attorneys for Defendant
Unpublished Opinion
Alexander Mainetti, Esq.
Mainetti, Mainetti & O'Connor, PC
Attorneys for Plaintiff
Sami Nasser, Esq.
Burke, Conway & Dillon
Attorneys for Defendant
DECISION AND ORDER
FORMAN, J.
The Court read and considered the following documents upon this application:
PAPERS NUMBERED
NOTICE OF MOTION....................... 1
AFFIRMATION IN SUPPORT.............. 2
EXHIBITS............................ 3_6
AFFIRMATION IN OPPOSITION.............. 7
This is a personal injury action based upon a September 12, 2016 motor vehicle accident in the Town of Cornwall. Plaintiff alleges that the accident occurred when Defendant failed to yield the right of way at a stop sign as required by the Vehicle and Traffic Law. Plaintiff also alleges that he suffered a serious injury as a result of this accident.
Plaintiff now moves for partial summary judgment on the issue of liability. For the reasons stated herein, that motion is granted.
BACKGROUND
On September 12, 2016 at approximately 6 p.m.. Defendant was stopped at a stop sign at the intersection of Holloran Road and Route 32 in the Town of Cornwall. At the same time. Plaintiff was traveling on his motorcycle on Route 32 and approaching the intersection.
Defendant testified that he waited at the stop sign for a few minutes before entering the intersection. Defendant also testified that there was no traffic approaching from the left when he decided to enter the intersection.
Defendant admitted that he saw Plaintiff approaching from the right before he entered the intersection. However, Defendant testified that Plaintiff was still ''a good distance" away. Therefore, although he could not estimate Plaintiff's speed of travel when he saw the approaching motorcyclist, Defendant thought he had enough time to safely make a left turn onto Route 32.
Defendant pulled out and made a left onto Route 32, and then proceeded to travel "very slowly" up that road. Defendant estimated that he had traveled approximately one-quarter mile before he was rear-ended by Plaintiff. Defendant was issued a ticket at the scene for failure to yield the right of way.
Plaintiff testified that he saw Defendant's car stopped at the intersection. As plaintiff neared the intersection, Defendant pulled out and turned left onto Route 32. Plaintiff was only about 15-20 feet from the intersection at this point.
Plaintiff testified that he applied his brakes upon seing Defendant pull out in front of him. Plaintiff also testified that he "was in a full-on skid when [defendant] completed his turn," and that he could not stop before colliding with Defendant's vehicle.
DISCUSSION
It is well settled that "a 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 is negligent as a matter of law" (Goemans v County of Suffolk, 57 A.D.3d 478, 479 [2d Dept 2008]; accord Zuleta v Quijada, 94 A.D.3d 876 [2d Dep't 2012]; Friedberg v Citiwide Auto Leasing, Inc., 22 A.D.3d 522 [2d Dep't 2005]). "It is immaterial that [a driver] ... stopped at the stop sign before proceeding into the intersection" because the driver would not have had the right of way when he or she proceeded (Zuleta at 877). In addition, a driver is "obligated to see that which by the proper use of his senses he should have seen" (Batal v Assoc. Univs., 293 A.D.2d 558, 559 [2d Dept 2002]; accord Goemans, supra).
Based on the uncontroverted facts in this record, defendant should have seen plaintiff approaching, and plaintiff was entitled to anticipate that defendant "would obey those traffic laws which required him to yield" (Spivak v Erickson, 40 A.D.3d 962, 963 [2d Dept 2007]; see also Klein v Crespo, 50 A.D.3d 745 [2d Dept 2008]) . Moreover, the record discloses no condition that would have required plaintiff to reduce his speed as he approached the intersection and that he had no time to take evasive action (see Peralta v Moore, 272 A.D.2d 458 [2d Dep't 2000] [plaintiff, by her own sworn testimony, was responsible for causing the accident, while defendants were in no position to take any steps to either reasonably foresee or to avoid the collision]).
Plaintiff has established, on a prima facie basis, that he is entitled to judgment as a matter of law. Therefore, it is incumbent upon Defendant to raise a triable issue of fact as to any comparative negligence on Plaintiff's part.
Defendant has failed to raise a triable issue of fact as to whether Plaintiff had enough time to stop his vehicle before colliding with Defendant's car. Specifically, Defendant admitted that he could not estimate Plaintiff's speed of travel when he pulled into the intersection. Although Defendant may have thought that he had enough time to pull out safely, the evidence clearly shows otherwise.
Specifically, the evidence demonstrates that the accident happened moments after Defendant proceeded through the stop sign and pulled out onto Route 32, despite his observation that Plaintiff was approaching the intersection on a motorcycle. "Such a brief period of time is generally insufficient to raise a question of fact regarding a party's failure to take evasive action" (LeCIaire v Pratt, 270 A.D.2d 612, 613 [3d Dept 2000]; see also DeLuca v Cerda, 60 A.D.3d 271 [2d Dept 2009] [plaintiff failed to raise issue of fact as to whether defendant, who only had seconds to react, was negligent in failing to avoid collision]). Based on the undisputed facts. Plaintiff was under no obligation to anticipate that Defendant would not yield the right of way (see Friedberg, supra] [plaintiff entitled to anticipate that defendant would obey the stop sign requiring her to yield]).
The record establishes as a matter of law that Defendant was negligent, and that his negligence was the sole proximate cause of the accident. Accordingly, Plaintiff's motion for partial summary judgment as to the issue of liability is granted. Based on the foregoing, it is hereby
ORDERED, that Plaintiff's motion for partial summary judgment as to liability is granted; and it is further
ORDERED that counsel shall appear for a compliance conference on February 26, 2018 at 9:30 AM.
The foregoing constitutes the Decision and Order of this court.