GONZALEZ v. Rufino Polanco, Defendant. (2018)

Order, Supreme Court, Bronx County (Donna M. Mills, J.), entered February 3, 2017, which denied defendant Bishop's motion for summary judgment dismissing the complaint as against her, unanimously reversed, on the law, without costs, and the motion granted.  The Clerk is directed to enter judgment accordingly.  Contrary to plaintiff's argument, a prior court decision granting plaintiff's motion for summary judgment did not find that defendant Bishop was negligent in connection with the motor vehicle collision, because plaintiff, who was a passenger in Pulinario's vehicle, was granted summary judgment only “to the extent that plaintiff is deemed free of culpable conduct.”

Bishop met her prima facie burden for summary judgment by demonstrating that Pulinario was negligent as a matter of law, and that Bishop was not negligently operating her vehicle.  Bishop and plaintiff testified that Pulinario failed to stop for a stop sign, which is a violation of Vehicle & Traffic Law §§ 1142(a) and 1172(a), which constitutes negligence as a matter of law (see Pace v. Robinson, 88 A.D.3d 530, 531, 930 N.Y.S.2d 581 [1st Dept. 2011];  see e.g. Sanchez v. Lonero Tr., Inc., 100 A.D.3d 417, 953 N.Y.S.2d 194 [1st Dept. 2012] ).  Bishop, who had the right of way, was “ ‘entitled to anticipate that other vehicles will obey the traffic laws that require them to yield,’ and ha[d] ‘no duty to watch for and avoid a driver who might fail to stop ․ at a stop sign’ ” (Dinham v. Wagner, 48 A.D.3d 349, 349–350, 851 N.Y.S.2d 535 [1st Dept. 2008] [citations omitted] ).

Although a driver lawfully entering an intersection may still be found partially at fault for an accident if he or she fails to use reasonable care to avoid a collision with another vehicle in the intersection (Nevarez v. S.R.M. Mgt. Corp., 58 A.D.3d 295, 298, 867 N.Y.S.2d 431 [1st Dept. 2008] ), plaintiff and Pulinario failed to raise a triable material issue of fact as to whether Bishop was negligent.  The evasive measures that Bishop took during the less than three seconds before impact did not constitute negligence, “under the emergency-like circumstances confronting her” (Garcia v. Verizon N.Y., Inc., 10 A.D.3d 339, 340, 781 N.Y.S.2d 93 [1st Dept. 2004];  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 Pulinario's contention that Bishop was speeding was speculative and conclusory (see Murchison v. Incognoli, 5 A.D.3d 271, 773 N.Y.S.2d 299 [1st Dept. 2004];  Cardona v. Fiorentina, 149 A.D.3d 495, 52 N.Y.S.3d 324 [1st Dept. 2017] ).

We have considered respondents' remaining arguments and find them unavailing.