HARRIGAN v. Moses Joseph, et al., Defendants–Respondents. (2018)

Judgment, Supreme Court, Bronx County (Lizbeth Gonzalez, J.), entered January 23, 2018, dismissing the complaint and all cross claims as against defendants Moses Joseph and Amanda Jackson pursuant to an order, same court and Justice, entered on or about January 16, 2018, which, inter alia, granted the cross motion of Joseph and Jackson for summary judgment, unanimously affirmed, without costs.  Defendant Amadou Sow's appeal from the aforesaid order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.  Plaintiff's appeal from the aforesaid order, deemed an appeal from the judgment.

Plaintiff was a passenger in a vehicle owned by defendant Jackson and driven by defendant Joseph, which was hit in an intersection by the livery vehicle owned and operated by defendant Sow. Sow admittedly failed to stop at the stop sign before entering the intersection, due to a mechanical failure of his brakes.

Joseph and Jackson met their prima facie burden of establishing that the motor vehicle accident resulted solely from Sow's negligence.  Both drivers' deposition testimony demonstrates that Joseph had the right of way in entering the intersection and that Sow did not stop at the stop sign before colliding with the side of Joseph's vehicle.  As the driver with the right of way, Joseph was entitled to anticipate that the other vehicle would obey the traffic laws that required it to yield, and he had no duty to watch for and avoid a driver who might fail to stop at a stop sign (see e.g. Gonzalez v. Bishop, 157 A.D.3d 460, 68 N.Y.S.3d 454 [1st Dept. 2018];  Sanchez v. Lonero Tr., Inc., 100 A.D.3d 417, 953 N.Y.S.2d 194 [1st Dept. 2012] ).

Joseph testified that he stopped twice and looked both ways before entering the intersection, and the contention by Sow and plaintiff that Joseph negligently failed to maintain a good lookout is speculative and fails to raise a triable issue of fact (see Jenkins v. Alexander, 9 A.D.3d 286, 288, 780 N.Y.S.2d 133 [1st Dept. 2004] ).  Moreover, under the emergency-like circumstances presented, Joseph's evasive response of accelerating to avoid a collision in the few seconds before impact did not constitute negligence (Gonzalez v. Bishop, 157 A.D.3d at 461, 68 N.Y.S.3d 454;  Rooney v. Madison, 134 A.D.3d 634, 634–635, 24 N.Y.S.3d 9 [1st Dept. 2015], lv denied 27 N.Y.3d 911, 2016 WL 3553579 [2016] ).

Plaintiff's and Sow's remaining contentions are unavailing.