Paljevic v. Smith

20 A.D.3d 517, 799 N.Y.S.2d 139

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 18, 2005
• Status: Published

Opinion

In an action to recover damages for personal injuries etc., the defendants Sharon M. Smith and Timothy Askew appeal from an order of the Supreme Court, Kings County (Barasch, J.) dated August 20, 2004, which denied that branch of their motion which was for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is affirmed, with costs.

The plaintiffs were passengers in a vehicle owned and operated by the defendant Joseph C. Murphy when it was involved in an accident with a vehicle owned by the defendant Sharon M. Smith and operated by the defendant Timothy Askew, at the intersection of Bowne Street and Minnieford Avenue on City Island in the Bronx. Smith and Askew moved for summary judgment dismissing the complaint insofar as asserted against them on the ground that the accident was caused solely by the negligence of Murphy. The undisputed proof that the vehicle operated by Murphy proceeded into the intersection, which was controlled by a stop sign, and failed to yield the right-of-way to the vehicle operated by Askew in violation of Vehicle and Traffic Law § 1142 (a), established, prima facie, Smith and Askew’s entitlement to summary judgment (see Ishak v Guzman, 12 AD3d 409 [2004]).

Nevertheless, the motion was properly denied, as, in opposition, the plaintiffs raise a triable issue of fact as to whether Askew was also negligent, and if so, whether that negligence contributed to the happening of the accident (see Bodner v Greenwald, 296 AD2d 564 [2002]; King v Washburn, 273 AD2d 725 [2000]). Prudenti, P.J., Schmidt, Santucci, Luciano and Spolzino, JJ., concur.