Derosario v. Gill

Appellate Division of the Supreme Court of New York

Derosario v. Gill

118 A.D.3d 739, 987 N.Y.S.2d 225

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 11, 2014

StatusPublished

Cited by4 cases

This text of 118 A.D.3d 739 (Derosario v. Gill) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Derosario v. Gill, 118 A.D.3d 739, 987 N.Y.S.2d 225 (N.Y. Ct. App. 2014).

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Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Lefkowitz, J.), dated November 13, 2012, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

“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” (Maliza v Puerto-Rican Transp. Corp., 50 AD3d 650, 651 [2008] [internal quotation marks omitted]). Here, the defendant made a prima facie showing of entitlement to judgment as a matter of law by submitting evidence that he was not negligent and that the plaintiffs negligence in failing to properly observe and yield to cross traffic before proceeding into an intersection was the proximate cause of the accident (see id. at 651). As the driver with the right-of-way, the defendant was entitled to assume that the plaintiff would obey the traffic laws requiring him to yield (see id. at 652; Russo v Scibetti, 298 AD2d 514 [2002]). The question of whether the plaintiff stopped at the stop sign is not dispositive, since the evidence established that he failed to yield even if he did stop (see Maliza v Puerto-Rican Transp. Corp., 50 AD3d at 652). Although a driver with a right-of-way also has a duty to use reasonable care to avoid a collision, in opposition to the defendant’s prima facie showing, the plaintiff failed to raise a triable issue of fact as to whether the defendant was negligent (see id.; Stiles v County of Dutchess, 278 AD2d 304, 305 [2000]; Puccio v Caputo, 272 AD2d 387 [2000]; Cenovski v Lee, 266 AD2d 424 [1999]).

Accordingly, the Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint.

Rivera, J.E, Sgroi, Hinds-Radix and Maltese, JJ., concur.

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In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Lefkowitz, J.), dated November 13, 2012, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

“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” (Maliza v Puerto-Rican Transp. Corp., 50 AD3d 650, 651 [2008] [internal quotation marks omitted]). Here, the defendant made a prima facie showing of entitlement to judgment as a matter of law by submitting evidence that he was not negligent and that the plaintiffs negligence in failing to properly observe and yield to cross traffic before proceeding into an intersection was the proximate cause of the accident (see id. at 651). As the driver with the right-of-way, the defendant was entitled to assume that the plaintiff would obey the traffic laws requiring him to yield (see id. at 652; Russo v Scibetti, 298 AD2d 514 [2002]). The question of whether the plaintiff stopped at the stop sign is not dispositive, since the evidence established that he failed to yield even if he did stop (see Maliza v Puerto-Rican Transp. Corp., 50 AD3d at 652). Although a driver with a right-of-way also has a duty to use reasonable care to avoid a collision, in opposition to the defendant’s prima facie showing, the plaintiff failed to raise a triable issue of fact as to whether the defendant was negligent (see id.; Stiles v County of Dutchess, 278 AD2d 304, 305 [2000]; Puccio v Caputo, 272 AD2d 387 [2000]; Cenovski v Lee, 266 AD2d 424 [1999]).

Accordingly, the Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint.

Rivera, J.E, Sgroi, Hinds-Radix and Maltese, JJ., concur.

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Bluebook (online)

118 A.D.3d 739, 987 N.Y.S.2d 225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/derosario-v-gill-nyappdiv-2014.

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