BREWSTER v. RISEBORO COMMUNITY PARTNERSHIP INC (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal, and the plaintiff cross-appeals, from an order of the Supreme Court, Kings County (Peter P. Sweeney, J.), dated April 3, 2023.  The order, insofar as appealed from, granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability.  The order, insofar as cross-appealed from, denied that branch of the plaintiff's motion which was for summary judgment dismissing the defendants’ affirmative defenses alleging comparative negligence, culpable conduct on the part of the plaintiff, and assumption of the risk.

ORDERED that the order is affirmed insofar as appealed from;  and it is further,

ORDERED that the order is reversed insofar as cross-appealed from, on the law, and that branch of the plaintiff's motion which was for summary judgment dismissing the defendants’ affirmative defenses alleging comparative negligence, culpable conduct on the part of the plaintiff, and assumption of the risk is granted;  and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

On the afternoon of July 9, 2021, a bicycle operated by the plaintiff collided with a vehicle owned by the defendant Riseboro Community Partnership, Inc., and operated by the defendant Jossie Cintron De Jesus (hereinafter the defendant driver) at the intersection of Avenue D and East 37th Street in Kings County.  The plaintiff was traveling on Avenue D, which was not controlled by a traffic control device, and the defendants’ vehicle was traveling on East 37th Street, which was controlled by a stop sign.  The plaintiff commenced this action against the defendants to recover damages for personal injuries that he allegedly sustained.  The plaintiff moved, inter alia, for summary judgment on the issue of liability and dismissing the defendants’ affirmative defenses alleging comparative negligence, culpable conduct on the part of the plaintiff, and assumption of the risk.  The plaintiff argued that the defendant driver's failure to yield the right-of-way was the sole proximate cause of the accident.  In an order dated April 3, 2023, the Supreme Court granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability and denied that branch of the plaintiff's motion which was for summary judgment dismissing the defendants’ affirmative defenses alleging comparative negligence, culpable conduct on the part of the plaintiff, and assumption of the risk.  The defendants appeal, and the plaintiff cross-appeals.

“Pursuant to Vehicle and Traffic Law § 1142(a), a driver entering an intersection controlled by a stop sign must yield the right-of-way to any other vehicle that is already in the intersection or that is approaching so closely as to constitute an immediate hazard” (Cruz v. DiSalvo, 188 A.D.3d 986, 987, 135 N.Y.S.3d 447;  see Shvydkaya v. Park Ave. BMW Acura Motor Corp., 172 A.D.3d 1130, 1131, 100 N.Y.S.3d 320).  “As a general matter, a driver who fails to yield the right-of-way after stopping at a stop sign is in violation of Vehicle and Traffic Law § 1142(a) and is negligent as a matter of law” (Shvydkaya v. Park Ave. BMW Acura Motor Corp., 172 A.D.3d at 1131, 100 N.Y.S.3d 320;  see Breen v. Seibert, 123 A.D.3d 963, 964, 999 N.Y.S.2d 176).  “Even though the driver with the right-of-way is entitled to assume that other drivers will obey the traffic laws requiring them to yield, he or she still has a duty to exercise reasonable care to avoid a collision with another vehicle already in the intersection” (Park v. Giunta, 217 A.D.3d 661, 662, 191 N.Y.S.3d 85;  see Tornabene v. Seickel, 186 A.D.3d 645, 646, 129 N.Y.S.3d 110).  “Even though a plaintiff is not required to establish his or her freedom from comparative negligence to be entitled to summary judgment on the issue of liability, the issue of a plaintiff's comparative negligence may be decided in the context of a summary judgment motion where the plaintiff moves for summary judgment dismissing a defendant's affirmative defense alleging comparative negligence and culpable conduct on the part of the plaintiff” (Sapienza v. Harrison, 191 A.D.3d 1028, 1029, 142 N.Y.S.3d 584;  see Seizeme v. Levy, 208 A.D.3d 809, 810, 174 N.Y.S.3d 421).

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability by submitting his own affidavit, which demonstrated that the defendant driver was negligent in entering the intersection without yielding the right-of-way to the plaintiff and that such negligence was a proximate cause of the accident (see Vehicle and Traffic Law § 1142[a];  Policart v. Wheels LT, 221 A.D.3d 920, 921–922, 200 N.Y.S.3d 420;  Jones v. Haifeng Zuo, 220 A.D.3d 933, 934, 198 N.Y.S.3d 734;  Balladares v. City of New York, 177 A.D.3d 942, 944, 114 N.Y.S.3d 448).  The plaintiff also demonstrated his prima facie entitlement to judgment as a matter of law dismissing the defendants’ affirmative defenses alleging comparative negligence and culpable conduct on the part of the plaintiff on the ground that the defendant driver's negligence was the sole proximate cause of the accident.  “[A] driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision” (Yelder v. Walters, 64 A.D.3d 762, 764, 883 N.Y.S.2d 290;  see Jones v. Haifeng Zuo, 220 A.D.3d at 934, 198 N.Y.S.3d 734;  Breen v. Seibert, 123 A.D.3d at 965, 999 N.Y.S.2d 176).  Finally, the plaintiff demonstrated that the doctrine of assumption of the risk does not apply to this case (see Cotty v. Town of Southampton, 64 A.D.3d 251, 256, 880 N.Y.S.2d 656;  Moore v. City of New York, 29 A.D.3d 751, 752, 816 N.Y.S.2d 131).

In opposition, the defendants failed to raise a triable issue of fact (see Israel v. Nichols, 226 A.D.3d 756, 757, 209 N.Y.S.3d 97;  Belle–Fleur v. Desriviere, 178 A.D.3d 993, 116 N.Y.S.3d 317).

Accordingly, the Supreme Court properly granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability.  However, the court should have granted that branch of the plaintiff's motion which was for summary judgment dismissing the defendants’ affirmative defenses alleging comparative negligence, culpable conduct on the part of the plaintiff, and assumption of the risk.

FORD, J.P., WAN, LANDICINO and LOVE, JJ., concur.