LIEBERMAN v. MILLER (2003)

Supreme Court, Appellate Division, Second Department, New York.

Cara H. LIEBERMAN, Appellant, v. Domenica A. MILLER, Respondent.  (Action No. 1).

Domenica A. Miller, et al., Respondents, v. Cara H. Lieberman, et al., Appellants.  (Action No. 2).

Decided: May 27, 2003

ANITA R. FLORIO, J.P., ROBERT W. SCHMIDT, SANDRA L. TOWNES and STEPHEN G. CRANE, JJ. Weitz & Luxenberg, P.C., New York, N.Y. (Gary Klein, Nicholas Wise, and William D. Fireman of counsel), for appellant in Action No. 1. Richard J. Baldwin, Hauppauge, N.Y. (Eric P. Tosca and Steven Reiss of counsel), for respondent in Action No. 1. Lewis, Johs, Avallone, Aviles & Kaufman, LLP, Melville, N.Y. (Ann K. Kandel and Christine Malafi of counsel), for appellant Cara H. Lieberman in Action No. 2. Smith Mazure Director Wilkins Young & Yagerman, P.C., New York, N.Y. (Mark S. Yagerman and Stephanie Morfesis Gallo of counsel), for appellant Chase Manhattan Automotive Finance Corp. in Action No. 2. Greshin Ziegler & Amicizia, LLP, Smithtown, N.Y. (Vincent M. Amicizia and Edward Leonard of counsel), for respondents in Action No. 2.

In two related actions to recover damages for personal injuries, etc., which were joined for trial, Cara H. Lieberman, the plaintiff in action No. 1, appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Martin, J.), dated September 4, 2002, as granted the motion of Domenica A. Miller, the defendant in Action No. 1, for summary judgment dismissing the complaint in that action, Cara H. Lieberman, a defendant in Action No. 2, separately appeals, as limited by her brief, from so much of the same order as granted that branch of the motion of Domenica A. Miller and Leslie Miller, the plaintiffs in Action No. 2, which was for summary judgment on the issue of liability against her and struck her affirmative defense of “contributory negligence,” and granted the cross motion of Chase Manhattan Automotive Finance Corp., a defendant in Action No. 2, for summary judgment on its cross claim for indemnification, and Chase Manhattan Automotive Finance Corp., a defendant in Action No. 2, separately appeals from so much of the same order as granted that branch of the motion of Domenica A. Miller and Leslie Miller, the plaintiffs in Action No. 2, which was for summary judgment on the issue of liability against it.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

Domenica A. Miller and Leslie Miller established, prima facie, their entitlement to summary judgment by demonstrating that Cara H. Lieberman, whose travel was governed by a stop sign, entered the intersection in question without yielding the right-of-way to the vehicle operated by Domenica A. Miller (see Vehicle & Traffic Law 1142[a];  Batal v. Associated Univs., Inc., 293 A.D.2d 558, 559, 741 N.Y.S.2d 551;  Szczotka v. Adler, 291 A.D.2d 444, 737 N.Y.S.2d 121).   In opposition, Cara H. Lieberman and Chase Manhattan Automotive Finance Corp. failed to raise a triable issue of fact as to whether Domenica A. Miller was comparatively negligent.   Accordingly, the Supreme Court properly granted the Millers' motions.

Furthermore, the Supreme Court properly granted the cross motion of Chase Manhattan Automotive Finance Corp. for summary judgment on its cross claim for indemnification (see ELRAC, Inc. v. Ward, 96 N.Y.2d 58, 77-78, 724 N.Y.S.2d 692, 748 N.E.2d 1;  Morris v. Snappy Car Rental, 84 N.Y.2d 21, 26-30, 614 N.Y.S.2d 362, 637 N.E.2d 253).