VIRZI v. FRASER (2008)

In an action, inter alia, to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Martin, J.), dated April 24, 2007, which denied her motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

A vehicle operated by the plaintiff Joseph Virzi, in which the plaintiff Roy Prochilo was a passenger, collided with a vehicle owned and operated by the defendant at the intersection of 77th Street and 16th Avenue in Brooklyn.   The plaintiffs were traveling on 77th Street, which was governed by a stop sign at its intersection with 16th Avenue.   The defendant was traveling on 16th Street, which was not governed by a traffic control signal at its intersection with 77th Street.

The defendant failed to submit evidence sufficient to establish her entitlement to judgment as a matter of law (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).   Although a stop sign governed the intersection for traffic proceeding in the direction that Virzi traveled, a triable issue of fact exists as to whether the defendant was free from negligence (see Campbell-Lopez v. Cruz, 31 A.D.3d 475, 475-476, 818 N.Y.S.2d 554;  Romano v. 202 Corp., 305 A.D.2d 576, 577, 759 N.Y.S.2d 365;  Hernandez v. Bestway Beer & Soda Distrib., 301 A.D.2d 381, 753 N.Y.S.2d 467).   Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint.